In the realm of criminal investigations of police shootings, transparency and confidentiality are historically not miscible in theory or practice. But in North Jersey Media Group, Inc. v. Township of Lyndhurst et al., the New Jersey Supreme Court has bridged the gap.
At issue was whether certain records documenting an investigation of a fatal shooting of a suspect by police were disclosable under the Open Public Records Act (OPRA) and the common law right of access. On Sept. 16, 2014, a multi-town, high-speed pursuit of a criminal suspect ended in the police shooting and killing the driver, who tried to accelerate his vehicle after police had cornered him with their cars. Consistent with attorney general directive, a shooting response team (SRT) investigation was undertaken. Also, as required by attorney general policy, use of force reports (UFRs) were submitted internally. Finally, a press release was issued by the Attorney General’s Office within hours after the incident, which reported certain facts other than the names of the officers and how many fired.
Certain media entities then filed with the various law enforcement agencies requests for records under both OPRA and the common law right of access. The documents requested included 9-1-1 calls, incident reports, arrest reports, UFRs, dashcam videos from mobile video recorders (MVRs), motor vehicle accident reports, computer-aided dispatch (“CAD”) reports, mobile data terminal printouts, and information required to be timely released under §3(b) of OPRA. In response, no documents were disclosed.
Suit was then filed by North Jersey Media Group, Inc., asserting both statutory and common law claims for access. Though some documents were then forthcoming—including CAD reports, property reports, telephone and radio and 9-1-1 call recordings, and redacted investigation and dispatch reports—access was denied to all other documents as the “products” of an open criminal investigation which would be “irrevocably” compromised by disclosure.
The legal basis for denial was twofold. First, the state argued that the records in question fell within the OPRA exemptions for: (1) “criminal investigatory records”, e.g., pertaining to a criminal investigation and required by law to be made, maintained, or kept on file; and (2) “records of investigations in progress”, e.g., pertaining to a criminal investigation the examination of which would be “inimical to the public interest” in order not to jeopardize the safety of the officers or the conduct of the investigation. Second, the state argued that, under the common law balancing test, the records were confidential given the state’s interest in preventing disclosure in order to preserve the integrity of the investigation.
After a protracted trial and interlocutory appeal process, as well as supplemental press releases by the Attorney General that disclosed some more information, the trial court ultimately ruled, in consideration of the integrity of the ongoing investigation, that neither the names of the shooting and investigating officers, nor the remaining UFRs, dash-cams videos, and police reports, were required to be disclosed. The New Jersey Supreme Court granted a motion for leave to appeal.
While noting that “the record is somewhat limited” regarding which documents were disclosed and which requests were denied, “and which of those are pressed on appeal”, the court identified the focus of its inquiry as “the scope of the criminal investigatory records exception in cases that involve a police shooting under investigation by the SRT; the meaning and scope of the ongoing investigations exemption in those matters; and the application of the common law balancing test to this challenging area.”
The court’s conclusion was, in part, not altogether surprising. The UFRs were plainly “required by law to be made” and thus were not exempt from unredacted disclosure under OPRA as criminal investigatory records, based on “the current law’s stated purpose”. Under §3(b) of OPRA, requiring disclosure of the “identity of the investigating and arresting personnel,” the names of the officers were clearly disclosable, using a press release, absent “a more particularized showing” that disclosure would be harmful to individual or public safety, or to the investigation in progress.
However, investigative reports, witness statements, and similarly detailed reports received a mixed verdict. Specific to the facts of this case, the court ruled that under OPRA such records were “not subject to disclosure at the outset of the investigation, when they were requested.” Also, per the common law test, the “detailed” and “revealing” “narrative summaries” contained in these same records weighed against their disclosure so as not to risk taint to an investigation. On the other hand, the court noted that the risk of taint to an investigation is “greatest in the first days and weeks after an incident—before potential eyewitnesses are identified and interviewed.” Thereafter, “the risk of taint partly fades once the principal witnesses … have made statements to law enforcement”, and certainly “after a grand jury votes not to file charges”, withholding such records may not be justified.
But perhaps the most interesting aspect of this decision related to disclosure of the MVR dashcam videos. Disclosure of the videos, construed as a record of investigations in progress, “would not have been ‘inimical to the public interest,’” but nonetheless was “not required in this matter in light of the criminal investigatory records exception” under OPRA. However, OPRA “does not compel the outcome under the common law test,” where different considerations apply. “Under the circumstances of this case, we find that the public’s substantial interest in disclosure of the MVR recordings … warranted the release of those materials under the common law right of access.”
At a time of often bitter and hostile public discord concerning police shootings, our court’s ruling was sage, both as a matter of law and public policy. Nationally, the rash of police-involved shootings has intensified calls for greater public accountability. The public interest in the proper operation of law enforcement is keen. To be sure, the law confers extraordinary latitude on the police’s authorized use of deadly force under a standard of objective reasonableness. But tragic police killings of unarmed people, often completely innocent racial and ethnic minorities, has fueled the perception of a situation out of control. Whether or not something wrong has in fact occurred, the public—served by law enforcement—must be made aware, in a timely fashion, before facts fall prey to suspicious rumor and innuendo. Law enforcement likewise benefits from a greater public understanding of its role and responsibility. The alternative is a citizenry at odds with their police, justified or not, who appear more as an occupation army than a peacekeeping force.
The court recognized these concerns. “[I]n the case of a police shooting, non-disclosure of dash-cam videos can undermine confidence in law enforcement and the work that officers routinely perform. It can also fuel the perception that information is being concealed… .” In contrast, “[f]ootage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so in a typical case without placing potential witnesses and informants at risk. Dash-cam footage can also be released without undermining the integrity of an investigation once investigators, shortly after an incident, have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.”
Regrettably, other jurisdictions have opted to conceal similar information and records. They do so at risk both to the police and to the citizenry. Transparency and confidentiality need not be inimical. Our New Jersey Supreme Court has struck a proper balance in favor of sensible accountability that should be beneficial to all.
Editorial Board members Lawrence Lustberg and Edwin Stern recused from this editorial.