The Superior Court of New Jersey recently clarified the criminal investigatory records exemption under New Jersey’s Open Public Records Act. Under OPRA, a criminal investigatory record is 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."
Grossman v. Office of the County Prosecutor (Ocean County) specifically addressed the exemption’s application after a criminal trial.
The Facts of the Case
Plaintiff Alan Grossman filed an action under OPRA seeking to compel the Ocean County Prosecutor’s Office to disclose and release documents relating to the investigation and prosecution of a criminal matter. He specifically sought statistical reports, evidence records, intelligence files, lab reports, wiretap tapes and a civil case file. The prosecutor’s office provided the statistical reports and denied the request for the other records pursuant to the criminal investigatory records exemption. In a subsequent denial, the Ocean County Prosecutor’s Office further stated that plaintiff had no particularized interest in the criminal case and that the request was vague, overly broad and failed to name specific documents to be released.
In the legal case that followed, the primary issue before the court was whether, following a public trial in a criminal matter, a law enforcement agency can lawfully withhold disclosure of documents and records in its case file on the basis that same are exempt as "criminal investigatory records."
The Court’s Decision
As explained by the Superior Court, it is the defendant's burden to establish that the criminal investigatory reports exception applies to an OPRA request. To do so, defendant must demonstrate that the documents sought are "not required by law to be made," and that they "pertain to any criminal investigation or related civil enforcement proceeding." O'Shea v. Township of West Milford, 410 N.J. Super. 371, 381-82 (App. Div. 2009).
In this case, the court rejected the argument that the records exemption is inapplicable because the documents requested are required be made or maintained pursuant to the New Jersey Division of Archives and Records Management (DARM) records retention schedule. The judge noted prior court precedent establishing that DARM’s retention policy does not constitute legal authority and does not have the force of law.
With regard to whether a public trial in a criminal matter impacts a law enforcement agency's reliance on the criminal investigatory records exemption, the court concluded that the exemption “does not dissipate merely because a criminal matter proceeds to a conclusion following a trial.”
The court held that there were sufficient reasons to apply the criminal investigatory records exemption in this case. There was an appeal pending of the criminal conviction. Other records were exempt for other reasons, including HIPPA. However, documents that were introduced to evidence at trial must be released as they had already been released into the public domain during trial.
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.