The State of New Jersey appeals from an award of counsel fees in favor of plaintiff, Courier News, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. In Courier News v. Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 817 A.2d 1017 (App.Div. 2003) ( Courier I), we determined that a tape recording of an emergency 9-1-1 call, in the custody of the Hunterdon County Prosecutor's Office (HCPO) in connection with a then-active criminal prosecution, was subject to public disclosure under OPRA. As the prevailing requestor in Courier I, plaintiff moved before us for an award of counsel fees pursuant to N.J.S.A. 47:1A-6.
Section 3(a) expressly carves that type of record out of the ongoing investigations exception. The Appellate Division rejected similar arguments in Courier News v. Hunterdon County Prosecutor's Office , 358 N.J.Super. 373, 383, 817 A. 2d 1017 (App. Div. 2003), when it ordered the release of a 9–1–1 tape tied to a homicide investigation. In that case, the defendant claimed that release of the tape to the media would be "inimical to the public interest" for two reasons: it would be more difficult to "select[ ] an impartial jury" and would "likely cause juror confusion" when the jury heard an electronically enhanced tape at trial.
Plaintiff asserts that once a party who has been denied access to a government records by the custodian of records files an action in Superior Court, "any such proceeding shall proceed under the procedures in Rule 4:67." Currier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003). In this matter OPRA allows actions to proceed summarily and should be granted and proceed under R. 4:67-2(a).
In his July 31 opinion, the judge concluded that the MVR recordings were government records, but, at that point in the proceeding, the OCPO had failed to carry its burden to produce specific, reliable evidence establishing that the recordings were exempt from disclosure as “criminal investigatory records” under N.J.S.A. 47:1A–1.1. See Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J.Super. 373, 382–83, 817 A. 2d 1017 (App.Div.2003). Moreover, Judge Grasso held that the recordings were not exempt from disclosure as pertaining to an “investigation in progress,” N.J.S.A. 47:1A–3(a), because any investigations of the driver of the vehicle or the officer “began after the video was made.”
Our "overarching public policy" favors "a citizen's right of access." Courier News v. Hunterdon Cnty. Prosecutor's Off., 358 N.J. Super. 373, 383, 817 A.2d 1017 (App. Div. 2003) (citing N.J.S.A. 47:1A-1 ). Accordingly, OPRA directs that "all government records shall be subject to public access unless exempt[,]" and "any limitations on the right of access ... shall be construed in favor of the public's right of access."
The judge concluded Lt. McGrath had failed to provide sufficient proof of injury if the proposed second certification were publicly released. The court likened the State's arguments to the claim that release of investigatory documents would taint potential jurors, which the court stated was rejected in Courier News v. Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 817 A. 2d 1017 (App.Div.2003). Additionally, the court discussed the public's substantial interest in police shootings of suspects, particularly given recent incidents in Ferguson, Missouri, and Staten Island, New York. The court noted that significant time had passed since the shooting of Ashford, and witness statements were likely already obtained.
Without question, proceedings under OPRA are to be conducted in a "summary or expedited manner." N.J.S.A. 47:1A-6; Hartz Mountain, supra, 369 N.J.Super. at 185, 848 A.2d 793; Courier News v. Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 378, 817 A.2d 1017 (App.Div. 2003). This means that a trial court is to proceed under the procedures prescribed in Rule 4:67.
In order to meet this burden, the agency must present "specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality." Courier News v. Hunterdon Cty. Prosecutor's Office , 358 N.J.Super. 373, 382–83, 817 A .2d 1017 (App. Div. 2003). Speculation is not sufficient to override "the overarching public policy in favor of a citizen's right of access" that guides our courts.
Consistent with Serrano and Asbury ParkPress, other courts have acknowledged the substantive import of OPRA's privacy provision. See Courier News v.Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 380 n. 5, 817 A.2d 1017 (App.Div. 2003) (recognizing possibility of claim under privacy provision in reviewing request for 911 tape, but noting that no argument was advanced based on caller's reasonable expectation of privacy); see also John Does v. City of Trenton Dep't ofPub. Works, 565 F.Supp.2d 560, 567, 570-71 (D.N.J. 2008) (noting OPRA's privacy provision is a "command[]" to public agencies and observing GRC's use of a balancing analysis to enforce that provision).
See N.J.S.A. 3B:2-4 (allowing actions by fiduciaries to proceed in a summary manner); see also Garruto v.Cannici, 397 N.J.Super. 231, 241-42 (App. Div. 2007) (providing an overview of probate proceedings in New Jersey). "[A] court must make findings of facts, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing." Courier News v. Hunterdon Cnty. Prosecutor's Off., 358 N.J.Super. 373, 378-79 (App. Div. 2003); see also Pressler & Verniero, Current N.J. CourtRules, cmt. on R. 4:87-8 (2024). If there are genuine issues as to any material fact, the court should conduct an evidentiary hearing on those disputed issues.