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In two decisions on March 19, New Jersey’s Appellate Division released 911 tapes to the media, saying they are not exempt from disclosure under the state’s Open Public Records Act even during criminal investigations. The rulings provide prosecutors with the first appellate guidance on the scope of the OPRA and the state’s Government Records Council, which handles complaints about noncompliance with the law. But the decisions in the two high-profile murder cases — including that of former basketball star Jayson Williams, accused of fatally shooting a limousine driver — are so fact-specific and narrowly cast that plenty remains for lawyers on both sides of the aisle to argue about. “There’s no precedent here,” says First Assistant Hunterdon Prosecutor Steven Lember, who argued for suppressing the Williams 911 call. “This is virgin jungle.” The Appellate Division did send two clear signals to future litigants, though. First, that it might be receptive to 911 callers who assert privacy rights, which under OPRA might bar release of such tapes. Second, the GRC’s organization and complaint procedures are in disarray and need attention badly. In one of the cases, Serrano v. South Brunswick, A-2708-02T5, Judge Edwin Alley’s decision — that 911 call tapes are records required by law to be kept and therefore are subject to release — was made simple because the person who made the call did not assert a privacy interest. The Serrano case stems from The Home News Tribune‘s reporting on the investigation of Michael Janicki, accused of fatally stabbing his father. Reporter Kenneth Serrano sought tapes of 911 calls Janicki made on the night of the murder. When the South Brunswick, N.J., town clerk turned him down, he filed a complaint with the Government Records Council. After hearing of the complaint’s existence, Middlesex County First Assistant Prosecutor William Lamb asked Judge Frederick DeVesa to grant a protective order sealing the tape. As Alley’s opinion noted, a fair amount of confusion ensued as DeVesa and the GRC both made decisions on the release of the tape. Alley used his decision to chastise the GRC for its graceless handling of the matter, and listed at length DeVesa’s complaints, such as that the GRC appeared to have assumed it had the power to order the release of evidentiary materials from the police or a prosecutor while a trial is pending, even if those officials were not made party to the proceedings. “We anticipate that the GRC will take prompt measures, including the adoption of appropriate regulations,” Alley wrote. Lamb agrees. “It seems to me extraordinary that you can have a procedure where very serious rights are at stake and have no rules,” he says. Lamb’s main grievance is that much of the GRC debate moved forward without him being served papers, even though he, not the town, was the real party-in-interest. Thomas Cafferty, who argued both cases as amicus curiae for the New Jersey Press Association, takes a broader view. “In fairness to the GRC, although the law will be a year old this July, the GRC was not fully chosen, selected or constituted until four or five months ago,” says Cafferty, of McGimpsey & Cafferty in Somerset, N.J. Although privacy was not asserted in the Serrano case, Judge Donald Coburn made clear in his concurrence that he favored such a right, quoting from the emotive opinion in State ex rel. Cincinnati Enquirer v. Hamilton County, 662 N.E. 2d 334 (Ohio, 1996): “While the quavering voice of a four-year-old pleading with a 911 operator to make daddy stop hitting mommy may be some station manager’s idea of ‘good television,’ the broadcast of that voice is not good law.” Coburn’s concurrence stands in contrast with Judge Jose Fuentes’ opinion in the Williams case, Courier News v. Hunterdon County, A-3353-02T2. The Courier News sought a 911 tape from the night Williams allegedly shot a limousine driver. The caller, Williams’ brother, did not express a privacy interest. Thus, Fuentes concluded in a footnote, the privacy interest was irrelevant. Fuentes’ holding is similar to Alley’s — that a 911 call is a government record and subject to release — but more narrowly tailored. He framed his decision inside a rubric of whether the release of such a tape would taint a jury pool or bias a trial, under Asbury Park Press v. Lakewood, 354 N.J. Super. 146 (2002). He found it does not, in part because the tape was so old. “Defendant’s position is untenable, a 911 tape discovered over a year ago cannot constitute ‘newly discovered evidence.’ Acceptance of defendants’ argument would seal every government record associated with a criminal investigation,” he wrote. Such a prospect would directly contravene OPRA, which explicitly offers access to investigative materials, Fuentes added. Fuentes also found procedural errors below by Judge Edmund Bernhard in Hunterdon County. Bernhard had treated the plaintiff’s complaint as if it were a request for a preliminary injunction restraining the prosecutor from holding onto the tape. In that scenario, the plaintiff has to demonstrate irreparable harm if the injunction is not granted. Fuentes wrote that OPRA actually requires a “summary or expedited” proceeding where the government has the burden of proving a need for secrecy, under R. 4:67, the summary actions rule.

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