Opinion
DOCKET NO. A-4613-14T2
01-29-2019
SHABSI GANZWEIG, Plaintiff-Respondent, v. TOWNSHIP OF LAKEWOOD, MARY ANN DEL MASTRO in her official capacity as Records Custodian and Township Clerk of the Township of Lakewood, OFFICE OF THE PROSECUTOR OF THE COUNTY OF OCEAN, and MARC E. ROESSLER in his official capacity as Assistant Prosecutor of the County of Ocean, Defendants-Appellants.
William K. Meighan, Assistant Prosecutor, argued the cause for appellant Ocean County Prosecutor's Office (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief; William K. Meighan, on the briefs). Bathgate, Wegener & Wolf, PC, attorneys for appellants Township of Lakewood and Mary Ann Del Mastro, join in the briefs of appellant Ocean County Prosecutor's Office. Walter M. Luers argued the cause for respondent. Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Sean F. Dalton, President, County Prosecutors Association, attorney; Annmarie Cozzi, of counsel and on the brief). Ian C. Kennedy, Deputy Attorney General, argued the cause for amicus curiae Attorney General (Gurbir S. Grewal, Attorney General, attorney; Raymond R. Chance, III, Assistant Attorney General, of counsel; Ian C. Kennedy, and Jana Robinson, Deputy Attorney General, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36 -3. Before Judges Reisner, Koblitz and Sumners. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1292-14. William K. Meighan, Assistant Prosecutor, argued the cause for appellant Ocean County Prosecutor's Office (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief; William K. Meighan, on the briefs). Bathgate, Wegener & Wolf, PC, attorneys for appellants Township of Lakewood and Mary Ann Del Mastro, join in the briefs of appellant Ocean County Prosecutor's Office. Walter M. Luers argued the cause for respondent. Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Sean F. Dalton, President, County Prosecutors Association, attorney; Annmarie Cozzi, of counsel and on the brief). Ian C. Kennedy, Deputy Attorney General, argued the cause for amicus curiae Attorney General (Gurbir S. Grewal, Attorney General, attorney; Raymond R. Chance, III, Assistant Attorney General, of counsel; Ian C. Kennedy, and Jana Robinson, Deputy Attorney General, of counsel and on the briefs). PER CURIAM
Our Supreme Court remanded this matter on December 3, 2018 for our reconsideration in light of its opinion in Paff v. Ocean County Prosecutor's Office, 235 N.J. 1 (2018). Ganzweig v. Twp. of Lakewood, ___ N.J. ___ (2018). We gave the parties and amici an opportunity to submit supplemental briefs. After reconsideration, we reverse. Our prior remand was not conducted, and so we again remand
for consideration of the common law right of access to the dash-cam videos. Because the Ocean County Prosecutor's Office issued a press release disclosing some information regarding the investigation, we also remand to the trial court to determine whether the written reports requested need to be supplied. [North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017)]. We further remand the counsel fee award for the court to review whether time spent obtaining the written records alone is appropriate. Any time spent exclusively to obtain records that the trial court determines need not have been supplied should be subtracted from the total time and the fee award adjusted.
[Ganzweig v. Twp. of Lakewood, No. A-4613-14 (App. Div. Aug. 28, 2017) (slip op. at 3-4).]
The Ocean County Prosecutor's Office, the Township of Lakewood, and others had appealed from an October 24, 2014 order finding they violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, when they denied a Lakewood resident access to records relating to a traffic stop. They also appealed a March 24, 2015 grant of approximately $22,000 in counsel fees and costs.
We granted amicus curiae status to the County Prosecutors Association of New Jersey and the Attorney General. --------
We set forth the facts in detail in our prior opinion. Ganzweig, slip op. at 4-7. Three dash-cam videos were obtained on August 31, 2013: one when a Lakewood Township Police Officer stopped a driver, but did not issue a summons, and two separate videos that captured the officer stopping the same car less than a minute later and the subsequent search and discovery of a controlled dangerous substance. Later, the officer was charged with official misconduct for illegally searching the car and falsifying documents. Plaintiff sought the three dash-cam videos pursuant to OPRA. His request was granted and defendants appealed.
Criminal investigatory records are exempt from OPRA disclosure requirements. The definition of 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." N.J.S.A. 47:1A-1.1.
The Supreme Court held in Paff that this OPRA exclusion should be broadly read to include any investigations ongoing at the time of the OPRA request, which here included the investigation of the officer as well as the driver and passenger, thus encompassing all three video recordings. See 235 N.J. at 7. Moreover, because the two traffic stops of the same car occurred within a minute of each other, the video recordings of both stops are part of one "investigation[] in progress." See ibid. Paff also held that a police chief directive to maintain a record did not make that record "required to be kept by law," as set forth in N.J.S.A. 47:1A-1.1. Ibid.
Reversed and remanded for a review of the common-law right of access, the release of police reports and counsel fees in conformity with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION