NJ Supreme Court Orders Police Department to Comply with OPRA Request

In Baffi Simmons v. Wendy Mercado (A-18-20/084695) (Decided June 17, 2021), the Supreme Court of New Jersey ordered the City of Millville to comply with an Open Public Records Act (OPRA) request for complaint-summonses, known as CDR-1s. The court held that while the Judiciary may have created the template for CDR-1s, the plaintiffs were seeking the information entered into it by Millville police officers, thereby making it the city’s government record under OPRA.

Facts of Simmons v. Mercado

Plaintiffs Baffi Simmons and the African American Data and Research Institute (collectively, AADARI) submitted a request under OPRA to defendants Millville City Clerk Wendy Mercado, the City of Millville, and the City of Millville Police Department (collectively, MPD) for complaint-summonses, known as CDR-1s, for certain classes of drug-related offenses. MPD denied the request, explaining that such records could only be obtained from the Judiciary pursuant to Rule 1:38 and that, even if MPD could access the records, such a request was overly broad and would require research beyond the scope of OPRA.

The trial court ordered MPD to produce the CDR-1s, emphasizing that although MPD did not maintain the records, it was still required to produce them because MPD officers input the information to make the CDR-1s and had access to them. The trial court further found that the request did not require research, as it only required MPD to observe whether a designated offense was drug-related or not.

The Appellate Division reversed, agreeing with MPD that the records were not in its possession. The court acknowledged that police officers input information to trigger the creation of CDR-1s but determined that, because the final product is maintained by the Judiciary, MPD was not obligated to produce the items requested. Finding that the CDR-1s were not MPD’s “government records” under OPRA, the court declined to address whether AADARI’s request would require research.

NJ Supreme Court’s Decision in Simmons v. Mercado

The New Jersey Supreme Court reversed. “Because MPD officers create the information contained in the CDR-1s, we find that they fall well within OPRA’s definition of a government record,” the court wrote. “We further find that AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope. Accordingly, we reverse and reinstate the trial court’s order mandating that MPD produce the requested records to AADARI.”

The court rejected MPD’s argument that members of the Judiciary, not law enforcement officers, “make” the CDR-1 forms. According to the court, that argument “completely obscures the nature of the information being sought.” It explained:

AADARI is not seeking blank forms that provide zero information regarding arrests made by MPD. We recognize that the Judiciary developed the CDR-1 template, or the electronic shell that categorizes the substantive information that must be entered by law enforcement officers. But it is the substantive information regarding arrests used to populate the CDR-1s that is at issue here, and that information is inputted by MPD and only MPD. No judicial officer or judge plays a role in creating the document or inputting any information into the CDR-1s at the moment the law enforcement officer fills out the form and submits it to the Judiciary. That is what AADARI is seeking here — the actual completed official document that contains details of an arrest, probable cause, and an arrestee’s biographical information.

The New Jersey Supreme Court also dismissed MPD’s argument that it is not obligated to produce the CDR-1s because it does not “maintain” the records. According to the court, that interpretation of what constitutes a government record does not square with the explicit language in OPRA. “Any reliance here on the maintenance of the records is misplaced because it completely ignores the fact that MPD officers ‘make’ the information by inputting substantive data about the arrests into eCDR, as noted above,” the court wrote. “The plain language of the statutory provision at issue here is clear: if a government official makes, maintains, or keeps on file electronic information in the course of his or her official business, it is a ‘government record’ subject to OPRA.”

Finally, the New Jersey Supreme Court turned to MPD’s argument that the request was not a proper request for OPRA purposes because it required research. As the court explained, the distinction between a research and non-research request lies with whether the plaintiff’s request demands the government agency engage in analysis or “the exercise of judgment in identifying responsive records.” It ultimately concluded that the request was well within OPRA’s scope and did not require research by MPD, writing:

We are not persuaded that AADARI’s records request would require MPD to engage in any analysis to produce the requested CDR-1s. As AADARI has explained, because it already has MPD’s arrest listings for the relevant time period, which include drug-related incidents, it has identified 162 cases that correspond to the requested CDR-1s. The arrest listings contain the first and last names of the offenders, their dates of birth, the dates of each incident, the incident numbers, and the specific offense charged — in this case, drug possession. MPD merely needs to use any of those already-provided data points to retrieve the corresponding CDR-1s and produce them to AADARI. Such an exercise would not require any subjective judgment, only the objective activity of producing the CDR-1s referenced in the arrest listings.

In light of its holding, the New Jersey Supreme Court reinstated the trial court’s order granting AADARI’s OPRA request. It ordered MPD to comply with the trial court order and provide the requested documents to AADARI within five business days of the filing of the Court’s opinion.

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