RICHARD RIVERA, LLC v. TOWNSHIP OF BLOOMFIELD

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3338-17T1

RICHARD RIVERA, LLC,

Plaintiff-Appellant,

TOWNSHIP OF BLOOMFIELD,
LOUISE M. PALAGANO,1 in her
official capacity as Records
Custodian for the Township of
Bloomfield, ESSEX COUNTY
PROSECUTOR'S OFFICE, and
CHERYL M. CUCINELLO, in
her official capacity as Records
Custodian for the Essex County
Prosecutor's Office,

Defendants-Respondents.
_____________________________

Argued December 18, 2019 – Decided January 9, 2020

Before Judges Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7478-17.

1
Because plaintiff resolved the matter with defendants Township of Bloomfield
and Louise M. Palagano, they are not participating on appeal.
CJ Griffin argued the cause for appellant (Pashman
Stein Walder Hayden PC, attorneys; CJ Griffin, of
counsel and on the briefs).

Matthew I.W. Baker argued the cause for respondents
Essex County Prosecutor's Office and Cheryl M.
Cucinello (Genova Burns LLC, attorneys; Kathleen
Barnett Einhorn, of counsel and on the brief; Matthew
I.W. Baker, on the brief).

Jacob Schermerhorn Perskie argued the cause for
amicus curiae American Civil Liberties Union of New
Jersey (Fox Rothschild LLP, attorneys; Jacob
Schermerhorn Perskie, of counsel and on the brief;
Jeanne LoCicero and Alexander Shalom, on the brief).

PER CURIAM

Plaintiff Richard Rivera, LLC 2 appeals from a March 12, 2018 order

denying its order to show cause (OTSC) and dismissing its verified complaint.

Plaintiff sought records related to a police-involved shooting under the OPRA.

The motion judge held certain video recordings of the incident were exempt

from disclosure because they fell under the criminal investigatory records

exception to OPRA. As a result, the judge denied plaintiff's OPRA request and

attorney's fees. We reverse.

2
Plaintiff provides expert witness services regarding police practices and serves
as a consultant on police matters. The company routinely files requests pursuant
to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for records
related to incidents of force by police officers, particularly incidents involving
deadly shootings, and reviews dash and body camera footage of such incidents.
A-3338-17T1
2
Plaintiff filed an OPRA request for government records with defendant

Township of Bloomfield (Bloomfield) and defendant Essex County Prosecutor's

Office (ECPO) pertaining to a police-involved shooting. The shooting occurred

in Bloomfield on August 18, 2017, when a knife wielding male was killed by

police officers responding to a 9-1-1 call.

Three days after the shooting, plaintiff sought OPRA information from

Bloomfield and the ECPO, including body-worn camera (BWC) footage. The

next day, the ECPO partially responded to plaintiff's OPRA request, providing

some of the information required pursuant to N.J.S.A. 47:1A-3(b). The ECPO

advised, "the investigation is active and no additional information is available

at this time." The ECPO acknowledged a full response to plaintiff's OPRA

request was due on August 30, 2017, but sought an extension of time until

September 20, 2017, "[d]ue to the nature of the request and relevant staff being

on vacation."3

In response to plaintiff's OPRA request, Bloomfield produced use of force

reports, dash camera footage, recordings of 9-1-1 calls related to the event,

information pursuant to N.J.S.A. 47:1A-3(b), and use of force training

3
Bloomfield also requested an extension of time to respond to plaintiff's OPRA
request because it required approval from the ECPO to release records.

A-3338-17T1
3
certificates for the officers involved in the incident. Bloomfield denied

plaintiff's request for the BWC footage because the ECPO "[did] not believe that

the public's need for access outweigh[ed] the law enforcement interest in

maintaining confidentiality of the . . . recordings (See Attorney General Law

Enforcement Directive No. 2015-1, 11.2)." The ECPO adopted and incorporated

Bloomfield's response to plaintiff's OPRA request.4

On October 18, 2017, plaintiff filed a verified complaint and OTSC

alleging OPRA violations for failure to disclose the BWC footage and requesting

attorney's fees. On October 24, 2017, the trial court entered the OTSC and

scheduled a return date. Two months later, the ECPO filed opposition to

plaintiff's OTSC and submitted a short certification from a Special Deputy

Attorney General/Acting Assistant Prosecutor within the Professional Standards

Bureau of the ECPO. According to the certification, the BWC footage was

subject to an active investigation and therefore exempt from disclosure under

OPRA.

4
Neither Bloomfield nor the ECPO provided the information within twenty-
four hours of plaintiff's OPRA request in accordance with N.J.S.A. 47:1A-3(b)
(requiring release of information pursuant to an OPRA request "within 24 hours
or as soon as practicable").
A-3338-17T1
4
On January 19, 2018, the trial court heard the parties' arguments. The

judge ruled the BWC footage was exempt from OPRA disclosure because the

footage was a criminal investigatory record and "not required by law to be made,

maintained or kept pursuant to N.J.S.A. 47:1A-1.1." The judge further found

the criminal investigation was ongoing and the public's need for access to the

footage was "not outweighed by the [p]rosecutor's interest . . . in keeping this

confidential." He found "no law that requires [BWC] recordings to be made or

maintained" and therefore the ECPO "did not violate OPRA because they did

not have to turn over the body footage." The judge also held the delay in

responding to plaintiff's OPRA request was "de minimis" and not in violation of

OPRA. Because the judge denied plaintiff's OPRA request in its entirety, he

determined plaintiff was not entitled to attorney's fees.

On appeal, plaintiff argues the judge erred in determining the BWC

footage was exempt from OPRA disclosure because the videos were criminal

investigatory records. Plaintiff also contends the judge mistakenly concluded

the ECPO's delay in responding to the OPRA request was "de minimis."

Plaintiff additionally claims the judge erred in denying its request for attorney's

fees.

A-3338-17T1
5
We exercise de novo review of a trial court's legal conclusions concerning

access to public records under OPRA. Drinker Biddle & Reath, LLP v. N.J.

Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).

"[D]eterminations about the applicability of OPRA and its exemptions are legal

conclusions" reviewable de novo. Carter v. Doe (In re N.J. Firemen's Ass'n

Obligation), 230 N.J. 258, 273-74 (2017) (citing O'Shea v. Twp. of W. Milford,

410 N.J. Super. 371, 379 (App. Div. 2009)).

"Any analysis of OPRA must begin with the recognition that the

Legislature created OPRA intending to make governmental records 'readily

accessible' to the state's citizens 'with certain exceptions[] for the protection of

the public interest.'" Gilleran v. Twp. of Bloomfield, 227 N.J. 159, 170 (2016)

(alteration in original) (quoting N.J.S.A. 47:1A-1). To effectuate that purpose,

OPRA establishes "a comprehensive framework for access to public records."

Mason v. City of Hoboken, 196 N.J. 51, 57 (2008). In assessing the sufficiency

of the agency's proofs submitted in support of its claim for nondisclosure, "a

court must be guided by the overarching public policy in favor of a citizen's

right of access." Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J.

Super. 373, 383 (App. Div. 2003) (citing N.J.S.A. 47:1A-1). Absent the

necessary proofs, "a citizen's right of access is unfettered." Ibid. If it is

A-3338-17T1
6
determined access has been improperly denied, the access sought shall be

granted. N.J.S.A. 47:1A-6.

OPRA exempts certain government records from disclosure provided the

information is deemed confidential, such as criminal investigatory records.

N.J.S.A. 47:1A-1.1. A "'[c]riminal investigatory record' means 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. If a record is not required by law to be

made or maintained, then it is exempt from public disclosure under OPRA. See

N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 551 (2017).

[A]n agency seeking to withhold a record from
disclosure as a criminal investigatory record must
satisfy "both prongs of the exception" by demonstrating
that the record is not required by law to be made,
maintained or kept on file, and that it 'pertains' to a
criminal investigation or related civil enforcement
proceeding.

[Paff v. Ocean Cty. Prosecutor's Office, 235 N.J. 1, 18
(2018) (citing Lyndhurst, 229 N.J. at 556).]

In determining whether the ECPO satisfied either prong to qualify for the

criminal investigatory record exemption under OPRA, we review Attorney

General Directive 2015-1, "Law Enforcement Directive Regarding Police Body

A-3338-17T1
7
Worn Cameras (BWCs) and Stored BWC Recordings" 1 (July 28, 2015),

https://www.nj.gov/oag/dcj/agguide/directives/2015-1_BWC.pdf. (Directive).

In the Directive, the Attorney General stated all police departments "must"

satisfy the announced statewide standards regarding police BWCs and the

storage of BWC recordings. Pursuant to his authority under "the Constitution

of the State of New Jersey and Criminal Justice Act of 1970," the Attorney

General "DIRECT[ED] that all law enforcement agencies and officers shall

implement and comply with . . . procedures, standards, and practices concerning

the use of body worn cameras and recordings." Directive at 2. The Directive

identifies situations in which police departments equipped with BWCs must

activate the BWCs. Id. at 8-10. It further instructs that BWCs must remain

activated throughout an entire "encounter/event/episode" and police

departments must retain BWC videos for at least ninety days. Id. at 11, 17.

A directive issued by the Attorney General is effectively a law. See

Lyndhurst, 229 N.J. at 565 (holding "[t]he Attorney General is the State's chief

law enforcement officer and has the authority to adopt guidelines, directives,

and policies that bind police departments throughout the State"); see also Paff

235 N.J. at 21-22 (finding, unlike the power conferred to the Attorney General,

an order issued by the municipal police chief does not have the force of law).

A-3338-17T1
8
The express language of the Directive is mandatory and applies to all law

enforcement agencies subject to the supervision of the Attorney General. See

O'Shea, 410 N.J. Super. at 384. The Directive clearly and unambiguously

establishes statewide standards for use and retention of BWCs and imposes an

affirmative duty on police officers in departments with BWCs to comply with

its mandates. Because BWC footage is required by law to be made, maintained,

and kept, it does not qualify as a "criminal investigatory record" exempt from

disclosure under OPRA. Lyndhurst, 229 N.J. at 551, 565. Therefore, the ECPO

failed to satisfy the first prong of the criminal investigatory record exception for

the BWC footage to be exempt from disclosure under OPRA.

We next consider the ECPO's argument that §11.2 of the Directive

establishes a different standard of review for disclosure of BWC footage.

Section 11.2 applies only if §10.1 is inapplicable. If a request for BWC footage

is made pursuant to OPRA, then §10.1(h) of the Directive governs access to and

use of a BWC recording. Under §10.1(h), disclosure of BWC footage simply

requires notice to the prosecutor or the Director of the Division of Criminal

Justice. If a request for disclosure of BWC video is not pursuant to OPRA or

any of the other authorized purposes enumerated in §10.1, then §11.2 grants the

A-3338-17T1
9
prosecutor discretion in determining whether to disclose the BWC recording

provided the footage relates to a criminal investigation.

The ECPO argued Directive §11.2 allows a prosecutor the discretion to

exempt a record "for the protection of the public interest" consistent with

N.J.S.A. 47:1A-1. Even if §11.2 of the Directive was applicable, the motion

judge undertook no analysis to support his finding that the public's need for

access to the footage was not outweighed by law enforcement's "interest in

maintaining confidentiality." Directive at 22.

The ECPO did not claim the investigation would be hindered if the BWC

footage was disclosed. Nor did the ECPO explain how its interest in maintaining

confidentiality of the BWC video outweighed the public's interest in disclosure

of the recordings. Absent any articulated basis in the record, we are unable to

agree that the ECPO had a legitimate interest in maintaining confidentiality of

the recording outweighing the public's right to access the information in

accordance with OPRA.

Based on the foregoing, the ECPO failed to meet its burden of proof

supporting denial of plaintiff's OPRA request for the BWC footage. Because

access to the BWC video was improperly denied, the footage shall be released

to plaintiff in accordance with N.J.S.A. 47:1A-6.

A-3338-17T1
10
Since we conclude plaintiff is entitled to the BWC footage, we need not

address plaintiff's argument that the ECPO's failure to release the requested

information "within 24 hours or as soon as practicable, of a request" was a

violation of N.J.S.A. 47:1A-3(b). However, we do not condone excessive delay

or deliberate non-compliance with the statute compelling the timely disclosure

of information requested under OPRA.

Because we reverse the judge's determination that the BWC footage was

exempt from disclosure under OPRA, plaintiff, as a prevailing party, is entitled

to an award of reasonable attorney's fees in accordance with N.J.S.A. 47:1A-6.

Plaintiff shall file a motion in the trial court seeking an award of reasonable

attorney's fees. We make no suggestion regarding the amount of any fees that

may be awarded.

Reversed. We do not retain jurisdiction.

A-3338-17T1
11

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