NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2523-14T1

NORTH JERSEY MEDIA GROUP, INC.,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. June 11, 2015

APPELLATE DIVISION TOWNSHIP OF LYNDHURST, HELEN POLITO, RMC, in her capacity as the Custodian of Records for the Township of Lyndhurst, BOROUGH OF NORTH ARLINGTON, KATHLEEN MOORE, in her capacity as the Custodian of Records for the Borough of North Arlington, BOROUGH OF RUTHERFORD, MARGARET M. SCANLON, RMC, in her capacity as the Custodian of Records for the Borough of Rutherford, BERGEN COUNTY POLICE DEPARTMENT, CAPTAIN UWE MALAKAS, in his capacity as Custodian of Records for the Bergen County Police Department, NEW JERSEY STATE POLICE and SERGEANT HARRY ROCHESKEY, in his capacity as Custodian of Records for the New Jersey State Police,

Defendants-Appellants. ______________________________________

Argued April 21, 2015 – Decided June 11, 2015

Before Judges Messano, Ostrer and Sumners.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-19048-14. Jeffrey S. Jacobson, Director, Division of Law, argued the cause for appellants New Jersey State Police and Sergeant Harry Rocheskey (John J. Hoffman, Acting Attorney General, attorney; Mr. Jacobson and Raymond R. Chance, III, Assistant Attorney General, of counsel; Daniel M. Vannella, Deputy Attorney General, on the briefs).

Richard J. DiLascio, attorney for appellants Township of Lyndhurst and Helen Polito, joins in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys for appellants Borough of North Arlington and Kathleen Moore, join in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

LaPorta & LaPorta, attorneys for appellants Borough of Rutherford and Margaret M. Scanlon, join in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Julien X. Neals, Bergen County Counsel, attorney for appellants Bergen County Police Department and Captain Uwe Malakas, joins in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Samuel J. Samaro argued the cause for respondent North Jersey Media Group Inc. (Pashman Stein and Jennifer A. Borg, attorneys; Mr. Samaro and Ms. Borg, of counsel; Mr. Samaro and CJ Griffin, on the briefs).

American Civil Liberties Union of New Jersey, attorneys for amicus curiae American Civil Liberties Union of New Jersey (Edward Barocas, Jeanne LoCicero and Iris Bromberg, on the brief).

2 A-2523-14T1 Loccke, Correia & Bukosky, attorneys for amicus curiae State Troopers Fraternal Association and Bergen County Policemen's Benevolent Association Conference (Michael A. Bukosky, on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

This appeal, by leave granted, concerns the public's right

to access records pertaining to a criminal investigation under

the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and

the common law right to inspect government records. The

Attorney General — on behalf of three municipalities, the Bergen

County Police Department, the New Jersey State Police (NJSP),

and their records custodians — appeals from the trial court's

order compelling disclosure pursuant to both OPRA and the common

law. Having reviewed the State's arguments in light of the

record and applicable principles of law, we conclude the trial

court misinterpreted OPRA's provisions governing criminal

investigatory records. The court also erred in declining to

consider the State's proposed ex parte showing of why releasing

certain requested documents would undermine its investigation

and be inimical to the public interest. As a result, we reverse

the court's order compelling release of the requested documents,

and remand for reconsideration in light of the principles we set

forth below.

3 A-2523-14T1 I.

Plaintiff North Jersey Media Group, Inc. (NJMG) is the

owner of numerous print and web-based news organizations,

including The Record, a general circulation daily newspaper, and

the South Bergenite, a weekly community newspaper. Reporters

for these two publications sought various records of local,

county, and state law enforcement agencies (LEAs) pertaining to

the fatal police shooting of a criminal suspect, Kashad Ashford.

The shooting followed a high-speed chase of Ashford and his

passenger Jemmaine T. Bynes across multiple municipalities.

The records custodians of the LEAs did not respond

consistently. None provided documents before NJMG filed its

November 3, 2014, complaint. Thereafter, NJMG received 9-1-1

call recordings, various redacted police documents containing

computer aided dispatch (CAD) reports, and a uniform force

report (UFR).1 However, the defendants continue to deny access

to many other requested documents, or to even acknowledge they

exist.

1 At oral argument, the Director of the Division of Law represented that a further search of the LEAs' files uncovered a UFR, which the State disclosed the preceding week. The State did so pursuant to O'Shea v. Township of West Milford,

(App. Div. 2009). The document is not in the record before us.

4 A-2523-14T1 The events leading to the fatal shooting are set forth in a

September 16, 2014, press release of the Attorney General's

Office (OAG); a December 9, 2014, certification of Cortney

Lawrence, the NJSP's lead detective in the Attorney General's

Shooting Response Team (SRT) investigation; and a December 10,

2014, certification of New Jersey Division of Criminal Justice

(DCJ) Lieutenant Robert McGrath, Detective Lawrence's

supervisor.2 A North Arlington resident called 9-1-1 at 2:12

a.m. on September 16 to report an attempted burglary of her

vehicle from her driveway. A North Arlington patrol vehicle was

dispatched to the scene to interview the resident. Meanwhile,

additional officers from the police departments of North

Arlington, Lyndhurst, Rutherford, and Bergen County joined the

investigation into the attempted burglary.3 Officers soon

spotted an SUV matching the information provided. Police

determined the SUV was stolen.

Police attempted to perform a motor vehicle stop, but the

driver, later identified as Ashford, refused. Instead, Ashford

led officers on a high-speed chase through several

2 Det. Lawrence's statement was based on the detective's "review[] [of] all the evidence and investigative materials in the related file." Lt. McGrath did not specify the basis for his "understanding" of the events leading to the shooting. 3 Lt. McGrath stated that NJSP officers also were involved in the investigation although he did not specify when that occurred.

5 A-2523-14T1 municipalities. At one point, Ashford attempted to ram a police

vehicle head-on. He later crashed into a guardrail on Ridge

Road at Route 3 in Lyndhurst.

The press release and the detective's certification present

different versions of what happened next. According to the

press release, more than one officer fired upon Ashford after he

spun his tires and allegedly backed his SUV at the officers,

ramming a police vehicle.4 Det. Lawrence's certification issued

nearly three months later was less definitive. The detective

stated Ashford and Bynes revved the engine "as if to force their

way out"; police had surrounded the vehicle; and ultimately,

Ashford was shot and killed. The detective did not assert

Ashford backed up, or rammed a police vehicle, nor did the

detective state how many officers shot at Ashford.5

4 The press release states:

Police positioned their vehicles around the SUV in an attempt to apprehend the vehicle's occupants, but the driver put the car in reverse, spinning the tires of the vehicle until the roadway was filled with smoke. The driver allegedly backed the SUV at the officers, ramming a police vehicle. Officers fired upon the driver of the SUV, striking him. 5 Det. Lawrence certified: "Even after becoming stuck in the wall, the suspects revved their engines at high RPM, as if to force their way out. Police vehicles and law enforcement (continued)

6 A-2523-14T1 Ashford was fatally shot at around 2:27 a.m., and

pronounced dead at a nearby hospital at 7:05 a.m. Officers

found a .357-caliber Magnum handgun and a facemask in the

vehicle. Bynes was arrested at the scene and charged with

weapons offenses and receiving stolen property. The SRT

immediately assumed control of the investigation. According to

released CAD reports, NJSP investigators began interviewing

officers that morning.

Following the shooting, The Record reporter Abbott Koloff

and South Bergenite reporter Meghan Grant submitted separate

requests under OPRA and the common law regarding the incident.

On September 16, 2014, Koloff asked Lyndhurst, North Arlington,

Rutherford, and the Bergen County Police Department to produce:

1. Incident Reports, Operation Reports, Investigation Reports, and/or Offense Reports (including supplemental reports);

2. Log book notations, daily activity logs, daily bulletins, daily statistical sheets, tally sheets, vehicle logs;

3. Audio recordings, and if available, written transcripts of such audio recordings of all police and law enforcement dispatches and recorded conversations including all 911 calls;

(continued) vehicles positioned around the suspects' vehicle. Ultimately, driver Kashad Ashford was fatally wounded by gunshot."

7 A-2523-14T1 4. Arrest reports for individual(s) in the incidents;

5. All information required to [be] released by law enforcement under Section 3(b) of the New Jersey Open Public Records Act, N.J.S.A. 47:1A-3(b) where (i) an arrest has not yet been made; and (ii) where an arrest has been made;

6. Use of force reports;

7. Audio and Video recordings from the mobile recorders (MVRs) in the vehicles of law enforcement personnel;

8. Motor Vehicle Accident Reports, Crash and Investigation Reports;

9. Computer Aided Dispatch reports;

10. Mobile Data Terminal Printouts (MDTs).

The same day, Koloff requested the following records from the

State Police:

1. use of force report[;] 2. audio recordings of law enforcement dispatches and recorded conversations including 911 calls; 3. audio and video recordings from mobile recorders (MVRs) in vehicles of law enforcement personnel; 4. computer aided dispatch reports[;] 5. arrest reports[;] 6. Motor Vehicle Accident Reports, Crash and Investigation Reports[;] 7. incident reports, operation reports, investigation reports and offense reports (including supplemental reports)[.]

Grant's September 17, 2014, request asked Lyndhurst to

disclose the following documents "as they are created":

8 A-2523-14T1 -All police reports concerning the Sept. 16, 2014 pursuit of suspects later identified as Kashad Ashford and Jemmaine Bynes.

-All use of force reports by Lyndhurst officers concerning the Sept. 16, 2014 shooting.

-Any additional documentation kept by the Lyndhurst Police Department concerning the Sept. 16, 2014 pursuit of suspects later identified as Kashad Ashford and Jemmaine Bynes and shooting.

-Any video tape (or a transcription of the video tape) obtained during the course of the investigation into the Sept. 16 pursuit and shooting.

Although the responses varied, none of the LEAs' records

custodians produced responsive documents before NJMG filed its

complaint. Lyndhurst's records custodian denied both reporters'

requests on September 25, 2014, based on the OAG's ongoing

investigation. Before doing that, the custodian had referred

the records request to OAG, which referred it back to Lyndhurst.

North Arlington's records custodian wrote to Koloff on September

25, 2014, stating that his requests were subject to an "ongoing

[OAG] investigation" and the OAG would determine what to

release. The Bergen County Police Department's records

custodian likewise denied Koloff's request based on the criminal

investigatory records exemption.

Rutherford's borough clerk also denied Grant's request in a

September 23, 2014, letter, stating it pertained to an

9 A-2523-14T1 investigation in progress, and release would jeopardize persons'

safety, the investigation, or would otherwise be inappropriate.

The clerk provided a statement from the Rutherford Police Chief,

disclosing that the department generated one CAD entry, two

incident reports, a daily activity log, and a copy of radio and

telephone transmissions, which were to be turned over to the

Attorney General's Office. The police chief stated that all

further information requests should be directed to the OAG, at

the request of Lt. McGrath, the supervisor.6

NJSP postponed its response three times, the last time

promising to respond by November 6, 2014. As late as October

23, 2014, the NJSP records custodian wrote that he was "still

trying to determine if the investigation into the death of

Kashad Ashford was conducted by the NJSP."7 The records

6 It is unclear from the record whether a similar letter was sent to Koloff. 7 The records custodian asserted a lack of knowledge, notwithstanding that the State Police's involvement was publicly acknowledged in the OAG's September 16, 2014, press release. Entitled "Attorney General's Shooting Response Team Investigates Fatal Shooting in Rutherford Involving State Police & Local Officers," the release stated:

Under an Attorney General Directive, the Shooting Response Team, made up of deputy attorneys general, detectives of the Division of Criminal Justice, and detectives of the State Police Major Crime Unit, are dispatched to the scene to handle (continued)

10 A-2523-14T1 custodian stated his search was impeded by the lack of a "case

number."

NJMG's two-count complaint alleged violations of OPRA and

the common law right to know. NJMG sought an order compelling

the release, or an in camera review, of documents believed to be

exempt; and fees and costs pursuant to N.J.S.A. 47:1A-6. The

court entered an Order to Show Cause (OSC) returnable December

12, 2014, which was adjourned to January 9, 2015, at the OAG's

request.

After the complaint was filed, Rutherford and the OAG

released documents. On December 5, 2014, Rutherford's counsel

wrote that he determined disclosure was appropriate under OPRA

"despite initially being advised to the contrary by the New

Jersey Attorney General's Office." The counsel provided

unredacted copies of: a CAD report, a property report, a compact

disc (CD) containing the recordings of three phone calls from

the public regarding the incident, and a CD containing "Radio

Transmissions from Rutherford PD Case # 14-19344, 9-16-14."8 The

(continued) investigations of shootings involving state troopers or officers employed by county prosecutors as detectives/investigators or members of county task forces. 8 Actual playable copies of the recordings were not included in the record on appeal. Instead, the State simply provided (continued)

11 A-2523-14T1 CAD report listed the names of the officers dispatched, their

car numbers, along with their response times, and the name of

the dispatcher. It included an entry that all additional

information and reports were to be generated by the OAG.

Rutherford's attorney also provided three investigation

reports, which were redacted.9 A Vaughn10 index was provided,

explaining the records were redacted for three reasons: to

protect against disclosing personal information that would

violate "reasonable privacy interests," pursuant to N.J.S.A.

47:1A-1 and Burnett v. County of Bergen,

(2009); to

shield criminal investigatory records, pursuant to N.J.S.A.

47:1A-1.1; and to shield records related to an ongoing

investigation, the release of which would be detrimental to the

(continued) photocopies of the CDs. Rutherford's counsel stated they were unredacted. 9 The reports consisted of: (1) a two-page supplemental investigation report, dated September 16, 2014, by a detective who responded to the scene of "a police involved shooting," and reported taking possession of the handgun found in the suspect's vehicle; (2) a two-page supplemental investigation report, dated September 16, 2014, by a detective-sergeant, who reported that he responded at 3:27 a.m. to the police-involved shooting, conferred with other officers and the police chief, and later made a copy of phone and radio recordings, which were to be turned over to the NJSP; and (3) a November 10, 2014, supplemental investigation report by the detective-sergeant, which was almost completely redacted. 10 Vaughn v. Rosen,

(D.C. Cir. 1973), cert. denied,

,

,

(1974).

12 A-2523-14T1 public interest, under N.J.S.A. 47:1A-3(a) and (b). Rutherford

Police Department telephone and radio recordings were placed on

a CD-R, which was turned over to the NJSP.

On December 22, 2014, the OAG released a 9-1-1 call

recording, and what its counsel described as "CAD reports" in

the possession of the DCJ. The dispatch reports were actually

contained within other documents, which were to varying degrees,

redacted without explanation. These included: a North Arlington

Police Department Investigation Report, which included mostly

unredacted incident details, and completely redacted sections

entitled "name details" and "narrative details"; a Lyndhurst

Police Department Dispatch Log, with the officer name section

redacted; a Bergen County Police Department Incident Report

Form, which included unredacted information about the incident,

but redacted the names of the officers who generated and

approved the report, and included a blacked-out half page. The

State did not provide a Vaughn index, nor did it expressly

confirm whether the remaining requested documents existed.

In its response to the OSC, the State provided

certifications from Det. Lawrence and Lt. McGrath. In addition

to setting forth details of the events leading to the shooting,

Det. Lawrence stated that the SRT assumed control of the

investigation "once the shooting took place." The SRT's

13 A-2523-14T1 investigation of the shooting, as well as its investigation into

Bynes's actions, were ongoing at the time of the certification,

on December 10, 2014. However, Bynes, who was released on bail,

was fatally shot in Newark in March 2015.11 Det. Lawrence

asserted that all documents generated after the initial 9-1-1

call were investigatory.

Lt. McGrath generally explained the Attorney General's

Directive 2006-5, which established the procedures for

investigating fatal police shootings, and the role of the SRT,

which operates independently from the ordinary chain of command.

Lt. McGrath stated that consistent with the directive, the SRT

assumed control of the investigation of the shooting, and the

underlying alleged criminal actions of Ashford and Bynes. Also

consistent with the directive, Lt. McGrath expected the matter

to be presented to a State Grand Jury after the SRT completed

its investigation. DCJ maintained all evidence and

investigative materials. Lt. McGrath asserted the investigation

was ongoing.

With respect to the reporters' document requests, Lt.

McGrath conceded the reporters were entitled to the 9-1-1

11 See Dan Ivers, Newark murder victim was second suspect in Lyndhurst fatal police shooting, NJ.com (Mar. 12, 2015, 5:29 PM), http://www.nj.com/essex/index.ssf/2015/03/newark_murder_ victim_was_second_suspect_in_lyndhur.html.

14 A-2523-14T1 recordings and related CAD reports, which the OAG released soon

thereafter with redactions in the case of the CAD reports. He

explained the initial 9-1-1 recording was not a product of the

investigation, although the call prompted it. He did not

explain the basis for releasing the CAD reports. Lt. McGrath

asserted that releasing "any of the other requested records . . .

would irrevocably compromise the ongoing investigation." He

contended that release would "corrupt the independent

recollections of witnesses," and lead witnesses to alter prior

statements, resulting in inconsistent statements that may

benefit a defendant. However, Lt. McGrath did not confirm which

of the other requested documents were actually withheld, and

which simply did not exist.

Lt. McGrath sought the opportunity to present, under seal

and ex parte, "case-specific examples of how the threats to the

integrity of the ongoing investigation and the negative impact

of same on the public interest, would be evident in release of

the records being sought for production here." He stated he

could not provide a more specific justification without

disclosing the information the OAG sought to keep confidential.

On the return date of the OSC, the trial court concluded

NJMG was entitled to all the records requested pursuant to both

OPRA and the common law, effective upon entry of the court's

15 A-2523-14T1 order. The court denied the OAG's motion to review an ex parte

certification from Lt. McGrath.

In its decision, the court reviewed the factual history of

the case, and the various governmental entities' responses to

NJMG's OPRA requests. The court held that redacting documents

was equivalent to the denial of access, citing Newark Morning

Ledger Co. v. New Jersey Sports & Exposition Authority,

(App. Div. 2011).

Addressing NJMG's access rights under OPRA, the court

concluded that neither the criminal investigatory records

exception, N.J.S.A. 47:1A-1.1, nor the ongoing investigation

exception, N.J.S.A. 47:1A-3(a), shielded the documents from

release. The former provision excludes "criminal investigatory

records" from the definition of government records subject to

disclosure under OPRA, unless the records are "required by law

to be made, maintained or kept on file." N.J.S.A. 47:1A-1.1.

The court concluded the governmental entities failed to

meet their burden to show the "required by law" exception-to-

the-exception did not apply. The court held that UFRs were

required by law to be made, pursuant to Attorney General

directives, which have the force of law, citing O'Shea, supra,

. The court held that 9-1-1 calls, police

dispatch records, and CAD entries were also "required by law"

16 A-2523-14T1 documents, citing Serrano v. South Brunswick Township,

(App. Div. 2003), N.J.S.A. 52:17C-1, and

N.J.A.C. 17:24-2.4. Motor vehicle accident reports were not

exempt from disclosure because they must be made public pursuant

to N.J.S.A. 39:4-131. As for the remaining documents, the court

held that local police general orders and policies have the

force of law necessary to remove the records from the exemption,

citing O'Shea, supra,

, and the State

failed to demonstrate by competent evidence that those orders or

policies did not apply.

The court also rejected the State's reliance on the

"ongoing investigation" exception, which applies only if release

of documents would be "inimical to the public interest."

N.J.S.A. 47:1-3(a). The court was unpersuaded by the State's

general argument that release of investigatory materials would

taint witnesses' independent recollections. The court declined

to consider Lt. McGrath's proposed ex parte submission. The

court held that whether to consider documents under seal was a

discretionary decision, citing Hammock ex rel. Hammock v.

Hoffmann-LaRoche, Inc.,

(1995). The judge

concluded Lt. McGrath had failed to provide sufficient proof of

injury if the proposed second certification were publicly

released.

17 A-2523-14T1 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,

(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.

The court also held that the OAG failed to comply with the

OPRA provision requiring release of certain information,

specified in the law, absent a showing the release would

jeopardize persons' safety, an investigation, or was otherwise

inappropriate. N.J.S.A. 47:1A-3(b). The court determined the

press release was insufficient, and release of underlying

documents was required.

The court found the responding entities failed to comply

with the timelines mandated by OPRA. Also, the court concluded

NJMG was entitled to fees under OPRA and asked the parties to

attempt to agree upon a "reasonable quantum of fees." Absent

agreement, the court set a schedule for submission of a

certification of services, as well as a response.

18 A-2523-14T1 Finally, the court addressed NJMG's rights under the common

law right of public access. Citing Keddie v. Rutgers,

(1997), the court identified the three predicates to the

common law right of access. As stated in Keddie, the three

predicates are: "(1) the records must be common-law public

documents; (2) the person [or entity] seeking access must

establish an interest in the subject matter of the material; and

(3) the citizen's right to access must be balanced against the

State's interest in preventing disclosure."

(internal

quotation marks and citations omitted). The trial court noted

that no party disputed that the requested documents were common

law public records. Moreover, NJMG had standing, given its

interest in policing the workings of government. Lastly,

balancing the factors set forth in Loigman v. Kimmelman,

(1986), the court found that the public's interest in

disclosure outweighed the responding entities' interest in

confidentiality.

By order entered January 22, 2015, the court compelled

defendants to "locate, identify and produce, without redactions,

all responsive records to [NJMG's] OPRA requests and provide

such records to [NJMG]" within three days. On January 26, 2015,

the court granted a stay until January 30, 2015, but otherwise

denied a stay pending appeal. We subsequently granted an

19 A-2523-14T1 emergent motion for leave to appeal, and stayed the court's

order.12

II.

We exercise de novo review of the trial court's decision

that OPRA requires disclosure of publicly held records. See,

e.g., K.L. v. Evesham Twp. Bd. of Educ.,

(App. Div. 2011), certif. denied,

(2012). "We

apply the same standard of review to the court's legal

conclusions with respect to whether access to public records is

appropriate under the common-law right of access." Drinker

Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety,

(App. Div. 2011). We apply a different and

deferential standard of review when a court conducts an in

camera review of documents and balances competing interests in

disclosure and confidentiality in connection with a common-law-

based request to inspect public records. Shuttleworth v. City

of Camden,

(App. Div.), certif. denied,

(1992). However, "to the extent [the appellate

court] can be said to be reviewing essentially a legal

12 The motion was filed by the Attorney General on behalf of the NJSP and its records custodian. The Bergen County Police Department, Lyndhurst, North Arlington, and Rutherford, as well as their records custodians, joined in the Attorney General's request for emergent relief from the court order. They have joined in the Attorney General's brief on appeal.

20 A-2523-14T1 determination, [it] can review the documents which the trial

judge ordered disclosed . . . ." Ibid.

In determining whether documents or information related to

a criminal investigation must be disclosed under OPRA, a court

must engage in a three-stage statutory analysis, which we

describe below. See N.J.S.A. 47:1A-1.1, -3(a), -3(b). The

governmental entity bears the burden to establish a basis for

non-disclosure. N.J.S.A. 47:1A-6. It is undisputed that but

for any exemptions, the requested records qualify as "government

record[s]" subject to access under OPRA, because they are

documents or recordings made, maintained, or kept on file by

public officials. N.J.S.A. 47:1A-1.1. The trial court's

decision raises interpretational issues as to each stage of the

statutory analysis.

First, the court must consider whether the requested

document is a "criminal investigatory record[]," which is

excluded from the definition of government record generally

subject to disclosure under OPRA. N.J.S.A. 47:1A-1.1. A

"criminal investigatory record" is defined as a document "held

by a law enforcement agency which pertains to any criminal

investigation or related civil enforcement proceeding[,]" which

is "not required by law to be made, maintained or kept on file."

Ibid. The provision thus raises two issues for analysis: what

21 A-2523-14T1 "pertains to" an investigation or enforcement proceeding; and

what satisfies the "required by law" standard.

Second, even if the document does not qualify as a

"criminal investigatory record" — for example, because it is a

"required by law" document — the court must consider whether the

document may be withheld as a document that "pertain[s] to an

investigation in progress by any public agency . . . if the

inspection, copying or examination of such record or records

shall be inimical to the public interest." N.J.S.A. 47:1A-3(a).

This exception, however, does not apply to a record that was

"open for public inspection . . . before the investigation

commenced." Ibid. We examine the trial court's rejection of

the State's claim that release of the documents was "inimical to

the public interest."

Regardless of whether a document can be withheld as a

"criminal investigatory record" under N.J.S.A. 47:1A-1.1, or as

a document pertaining to an ongoing investigation, the release

of which would be inimical to the public interest under N.J.S.A.

47:1A-3(a), a public agency must still disclose certain

"information" pertaining to a criminal investigation within

twenty-four hours of a request or as soon as practicable.

N.J.S.A. 47:1A-3(b). This information includes:

where a crime has been reported but no arrest yet made, information as to the type

22 A-2523-14T1 of crime, time, location and type of weapon, if any;

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

23 A-2523-14T1 [Ibid.]

However, the public agency may withhold such information if

release would "jeopardize the safety of any person or jeopardize

any investigation in progress or may be otherwise inappropriate

to release." Ibid. This "exception shall be narrowly construed

to prevent disclosure of information that would be harmful to a

bona fide law enforcement purpose or the public safety." Ibid.

When a public agency relies on this exception, it shall issue a

brief explanation. Ibid.13

13 Under appropriate circumstances, a court must also ascertain whether a document pertaining to a criminal investigation is exempt from disclosure pursuant to other "statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order." N.J.S.A. 47:1A-1. Depending on the circumstances, a request for records relating to a criminal investigation may implicate other exemptions. While we do not attempt here to present an exhaustive list, we note the definition of "government record" excludes documents in the following categories that conceivably may be implicated in a criminal investigation: "inter-agency or intra-agency advisory, consultative, or deliberative material"; under specified circumstances, "photographs and videotapes of the body . . . of a deceased person" in connection with autopsies; "security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software"; and "information which is to be kept confidential pursuant to court order." N.J.S.A. 47:1A-1.1. Also, OPRA does not override any grant of confidentiality or privilege previously established or recognized by the Constitution, statute, court rule, or judicial case law, N.J.S.A. 47:1A-9(b), which would include, among others, documents covered by the informer's privilege, N.J.R.E. 516, and attorney-client privilege, N.J.R.E. 504. As defendants (continued)

24 A-2523-14T1 III.

We turn first to the court's determination that the State

failed to meet its burden to show that the requested documents

were criminal investigatory records, that is, records

"pertain[ing] to any criminal investigation or related civil

enforcement proceeding[,]" and "not required by law to be made,

maintained or kept on file." See N.J.S.A. 47:1A-1.1. As

explained above, "required by law" documents constitute an

exception-to-the-exception of documents pertaining to a criminal

investigation or related civil enforcement proceeding. Based on

the legislative history, and prior case law, we are persuaded

that the court interpreted the "required by law" exception-to-

the-exception too broadly. On the other hand, the court's

findings with respect to release of 9-1-1 recordings and part of

the CAD reports are consistent with principles we shall set

forth below regarding what constitutes documents that do or do

not "pertain[] to any criminal investigation." See ibid.

A.

We address the "required by law" issue first. We begin by

reviewing legislative history, which justifies applying pre-OPRA

case law in interpreting this exception-to-the-exception. We

(continued) do not invoke these exclusions, we do not address their applicability to the case before us.

25 A-2523-14T1 then review that case law, and apply it to the requests in this

case.

OPRA was adopted in 2002 as an amendment to the Right to

Know Law (RTKL), which had remained largely intact since its

enactment in 1963. L. 1963, c. 73.14 The RTKL generally created

a statutory right of access to government documents "required by

law to be made, maintained or kept on file." L. 1963, c. 73, §

1, repealed by L. 2001, c. 404, § 17. The "required by law"

precondition was narrowly construed. See, e.g.,

("[T]his Court has consistently held that the

Right-to-Know Law's definition of a public record is narrow and

is to be strictly construed."). The RTKL also excluded from

release documents pertaining to investigations in progress, if

release would be inimical to the public interest. L. 1963, c.

73, § 3 (permitting the denial of access to records that

"pertain to an investigation in progress . . . [and] inspection,

copying or publication of such record or records shall be

inimical to the public interest").

The "required by law" standard was recognized as a

significant impediment to public access under the law. As noted

14 Amendments were adopted in 1995 to address issues involving biotechnology trade secrets, see L. 1995, c. 23, and in 1998 to address convicts' access to certain information. L. 1998, c. 17, § 1.

26 A-2523-14T1 by Senator Robert J. Martin, the principal co-author of the

Senate version of the legislation that ultimately was enacted as

OPRA:

We have a Right to Know Act, which dates back to 1963. The problem with that law is that it only requires . . . [access to] documents that are required by law to be made . . . maintained, or kept on file. The statute, in other words, is very narrow in its form. And what has happened is that many records, which the public, I think, would expect to be available to them, are not required by law to be made — to be maintained.

[Public Hearing before Senate Judiciary Comm., Senate Bill Nos. 161, 351, 573, and 866, 209th Legislature (March 9, 2000) (Statement of Sen. Martin) at 1-2.]15

The legislative response in OPRA required access to

"government records" subject to enumerated exceptions, and

defined "government records," as those in their various forms,

"that ha[ve] been made, maintained or kept on file" without

regard to whether the law required them to be made, maintained,

or kept on file. This change was embodied in the legislation as

introduced, and as finally enacted. Compare Assembly Bill No.

15 Senator Martin and Senator Byron M. Baer were the original sponsors of Senate Bill No. 2003, which was introduced in December 2000. That bill was similar — although not identical — to Assembly Bill No. 1309, originally introduced by Assemblymen George F. Geist and Jack Collins, which as amended was enacted as OPRA. The public hearing pertained to prior versions of reform legislation.

27 A-2523-14T1 1309, 209th Legislature (Pre-filed for Introduction in the 2000

Session) and Senate Bill No. 2003, 209th Legislature (December

14, 2000), with Assembly Bill No. 1309, 209th Legislature (Fifth

Reprint) (January 8, 2002), and L. 2001, c. 404, § 2.

In its initial version, the legislation did not single out

criminal investigatory records for special treatment within the

definition of "government record." However, a Senate floor

amendment offered by Senator Martin to the Assembly-passed

version of Assembly Bill No. 1309 changed that. The amendment

excluded from the definition of government records, "criminal

investigatory records," which it defined as "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."

See Assembly Bill No. 1309 (Fifth Reprint). Such records were

"deemed . . . confidential" for the purposes of the statute, as

were other documents covered by other exemptions. The purpose

was to narrow access to criminal investigatory records. See

Statement to Senate Bill No. 2003 with Senate Floor Amendments,

209th Legislature (Proposed by Senator Martin) (Adopted May 3,

2001) ("The amendments exempt criminal investigatory records of

a law enforcement agency from the statutory right of access.

28 A-2523-14T1 However, a common law right of access could be asserted to these

and other records not accessible under the statute.").

Also part of the floor amendment was the provision now

codified at section 3(b), described above, which requires

disclosure of specified information about a criminal

investigation, notwithstanding any exemption from disclosure,

provided it does not jeopardize persons' safety, the

investigation, or is otherwise inappropriate. The provisions of

section 3(b) were largely drawn from an executive order of

Governor Whitman, see Exec. Order No. 69, ¶ 3 (Whitman) (May 15,

1997), which in turn largely incorporated the terms of an

executive order of Governor Kean. See Exec. Order No. 123, ¶ 2

(Kean) (Nov. 12, 1985).

Beginning with an order of Governor Hughes in 1963,

"[f]ingerprint cards, plates and photographs and other similar

criminal investigation records which are required to be made,

maintained or kept by any State or local government agency" were

exempt from disclosure under the RTKL. Exec. Order No. 9, ¶

2(e) (Hughes) (Sept. 30, 1963). Governor Kean continued this

exemption, with the proviso that the information, ultimately

identified in section 3(b), "shall be made available to the

public as soon as practicable unless it shall appear that the

release of such information will jeopardize the safety of any

29 A-2523-14T1 person or any investigation in progress or be otherwise

inappropriate." Exec. Order No. 123, ¶ 2 (Kean). The order

went on to state that "'as soon as practicable' shall generally

be understood to mean within 24 hours." Ibid.

Thus, Senator Martin's amendment restored, with respect to

criminal investigatory records, the RTKL's "required by law"

standard. Criminal investigatory records were exempt from

access if they were "not required by law to be made, maintained

or kept on file." In other words, the public's right of access

to criminal investigatory records reverted to what existed pre-

OPRA: access was granted to records "required by law to be made,

maintained or kept on file." However, the drafters also

codified the mandate to release of identified information, in

place since Governor Kean's 1985 order.

In view of this history, it is appropriate to interpret the

"criminal investigatory records" exception in OPRA in light of

pre-OPRA case law interpreting the RTKL's "required by law"

standard in cases involving requests for records pertaining to

criminal investigations. According to well-established

principles of statutory construction, the Legislature's

reinsertion of the RTKL's formulation reflected its approval of

prior judicial interpretation, as it applied to criminal

investigatory records.

30 A-2523-14T1 The construction of a statute by the courts, supported by long acquiescence on the part of the Legislature, or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. The persuasive effect of such legislative inaction is increased where the statute has been amended after a judicial construction without any change in the language so interpreted.

[Lemke v. Bailey,

(1963) (citations omitted).]

"Moreover, courts will not impute a legislative intention to

alter an established judicial interpretation absent a 'clear

manifestation' of such intent." Coyle v. Bd. of Chosen

Freeholders of Warren Cnty.,

(2002) (citation

omitted). The case for inferring legislative endorsement of

prior judicial interpretation is especially strong in this case,

which presents not merely the acquiescence in prior language, or

amendment without change of prior language, but the affirmative

restoration of prior language after its deletion in earlier

versions of the legislation.16

We recognize that OPRA generally commands that limitations

on access to government documents "shall be construed in favor

of the public's right of access." N.J.S.A. 47:1A-1. By

16 We thus part company with the view of the panel in O'Shea, supra,

, that gave little weight to decisions under the RTKL, in interpreting the "criminal investigatory records" exception.

31 A-2523-14T1 contrast, as noted, the "required by law" standard was narrowly

construed, including as applied to records related to criminal

investigations. See

; Home News Publ'g Co. v. State,

(App.

Div. 1988). We do not construe OPRA's general rule of

construction as a basis to deviate from the established

interpretation of the "required by law" standard, which by

amendment was reinserted into OPRA. The OPRA rule of

construction guides statutory interpretation where the statute

is unclear, or ambiguous. The "required by law" standard was

already clearly defined by established case law.

B.

According to pre-OPRA judicial interpretation, documents

are "required by law to be made, maintained or kept on file," if

so mandated by a statute, regulation, executive order, or

judicial decision. We are not persuaded that a generic record

retention policy, or an internal agency directive of a public

official would suffice to satisfy the "required by law" standard

with respect to criminal investigatory records.

The distinction between documents "required by law," and

documents created through the exercise of discretion, was

recognized in Irval Realty Inc. v. Board of Public Utility

Commissioners,

(1972), which involved civil

32 A-2523-14T1 investigational records.

. After a gas explosion,

the plaintiffs sought reports that a utility prepared and filed

with the Board of Public Utility Commissioners (PUC), and an

investigative report prepared by the PUC staff.

.

The utility's report was prepared pursuant to a formally

promulgated PUC regulation requiring utilities to report certain

accidents.

. The Court held that the RTKL

encompassed the utility's reports because the PUC's regulation

had "the force of law and require[d] that such reports be made."

. The Court did not so find as to the PUC staff's

reports, stating, "Whether the investigation reports prepared by

members of defendant's staff meet this definition is less clear,

but need not be decided here since they certainly qualify as

public records within the scope of the common law rule." Ibid.17

See also Attorney General George F. Kugler, Jr., New Jersey's

Right to Know, A Report On Open Government 9 (1974) (stating

that the "required by law" precondition "clearly embodies

administrative rules and regulations as well as statutes").

In another utility case, the Court held that an order of

the Board of Public Utilities (BPU), which directed solid waste

17 The Court did not address the exemption under section 3 of the RTKL governing release of documents pertaining to ongoing investigations, where release would be inimical to the public interest. See L. 1963, c. 73, § 3.

33 A-2523-14T1 utilities to provide the BPU with customer lists, did not

satisfy the RTKL's "required by law" standard, meaning the lists

were not subject to release under the RTKL. In re Request for

Solid Waste Util. Customer Lists,

(1987) ("In

re Request"). The Court stated: "The lists are not 'records

which are required by law to be made, maintained[,] or kept on

file by any board . . . .' [T]he order was merely an

administrative directive, and not the equivalent of either a

statute or a Board regulation . . . and therefore not subject to

disclosure as public records."

(citation omitted).

In another case, the Court also held that the RTKL did not

cover documents pertaining to a background character

investigation, performed in response to the Governor's

discretionary request. Nero v. Hyland,

(1978). The records were not "required by law to be made,

maintained or kept on file" because "[n]o statute, regulation,

executive order or judicial decision require[d] that the

Governor conduct a character investigation . . . ."

The

Court rejected the trial court's "engrafting upon [the RTKL] the

definition of a public record contained in the Destruction of

Public Records Law [(DPRL)], N.J.S.A. 47:3-16."

.

The Court directly addressed a RTKL request for documents

pertaining to a criminal investigation in State v. Marshall, 148

34 A-2523-14T1 N.J. 89, cert. denied,

,

,

(1997). In his effort to collaterally challenge his

conviction, Marshall sought access to the entire investigative

file in his case. Id. at 268.

The Court broadly and unqualifiedly held, "The Right-to-

Know Law does not provide defendant with the right to inspect

the law-enforcement files sought in this case because no law or

regulation requires that such files 'be made, maintained or

kept.'" Id. at 272-73 (citation omitted). The court cited with

approval River Edge Savings & Loan Association v. Hyland,

(App. Div.), certif. denied,

(1979), for the proposition that "no law required that results

of law-enforcement official's investigation into alleged

criminal offense be maintained or kept, and thus such results

were not subject to Right-to-Know Law." Marshall, supra,

. The court also approvingly cited Asbury Park

Press, Inc. v. Borough of Seaside Heights,

(Law Div. 1990), for the principle that "no law required that

police reports be maintained or kept and thus reports were not

subject to [the] Right-to-Know Law." Marshall, supra,

.

We applied these principles in denying a newspaper's claim

under the RTKL to access to a police department's

35 A-2523-14T1 investigational reports in Daily Journal v. Police Department of

Vineland,

(App. Div.), certif.

denied,

(2002).

We have found no case holding that criminal investigation reports are public records under the RTKL. Indeed, the courts have held to the contrary, on the basis that no law or regulation requires the making, maintaining or keeping on file the results of a criminal investigation by a law enforcement officer or agency.

[Id. at 120.]

We rejected the contention that the "required by law" standard

was satisfied by N.J.S.A. 40:48-6, which we stated "provides how

. . . governmental material shall be kept in order to secure the

material against fire and ordinary theft," or by N.J.S.A.

40A:14-118, which "provides only for the creation of a police

force and for the maintenance, regulation and control thereof."

. Thus, the incidental or indirect creation or

retention of documents is not enough.

We reached a similar conclusion in Shuttleworth, where, as

here, the plaintiff sought records involving a fatal police

shooting of a criminal suspect.

. The shooting victim in that case, named

Watson, was already in custody.

. Specifically, the

plaintiff sought "all reports relating to Watson's arrest and

the related firearm discharges[,] . . . tape recordings of the

36 A-2523-14T1 investigation, the police inventory of Watson's possessions, and

copies of any rules or procedures of the Camden Police

Department pertaining to firearms in the area of prisoner

detentions."

. We rejected the plaintiff's argument

that N.J.S.A. 40:48-6 or provisions of the municipal code

required "that the investigative reports . . . be made,

maintained or kept on file."

We stated, "Rather, they

provide how material which is in the possession of the

government, whether by virtue of some legal requirement or

otherwise, is to be maintained. Thus, they need not be

'maintained' by law within the meaning of the [RTKL]." Ibid.18

A broad reading of the "required by law" exception to the

"criminal investigatory record" exception, as suggested by NJMG,

also conflicts with the Legislature's intent as expressed by the

adoption of the provision, previously found in Governor Kean's

and Governor Whitman's executive orders, mandating disclosure of

specified information about a reported crime. See N.J.S.A.

47:1A-3(b). Were access to investigative records as extensive

as NJMG suggests, notwithstanding the "criminal investigatory

records" exception, then there would have been little need to

18 Strictly speaking, these observations were dictum, as the court stated it did not need to decide whether the police investigative file was a public record under the RTKL.

.

37 A-2523-14T1 mandate disclosure of information in section 3(b). We are

unpersuaded by NJMG's argument that the principal purpose of

adding section 3(b) was simply to assure the speedy release of

the specified information.

We recognize that the RTKL authority reviewed above does

not expressly address whether an internal agency directive

satisfies the "required by law" standard. Nor do the cases

address the impact of judicial decisions requiring the creation

or preservation of investigational materials. However, we are

unprepared to endorse including them within the universe of

documents "required by law to be made, maintained or kept on

file."

First, the Court in Marshall spoke definitively and without

reservation that the defendant's law enforcement file did not

include "required by law" documents. See Marshall, supra,

. We hesitate to find exceptions to the Court's

definitive statement of law. See White v. Twp. of N. Bergen,

(1978) (noting that trial and intermediate

appellate courts are "bound, under the principle of stare

decisis, by formidable precedent"). Moreover, we are unprepared

to explore the applicability of any judicial mandates to create

or preserve investigatory records, inasmuch as NJMG does not

38 A-2523-14T1 rely on any such requirement, and the issue has not been briefed

by the parties.19

Second, administrative directives of the Attorney General,

similar to the BPU order in In re Request, are "not the

equivalent of either a statute or a . . . regulation." See In

re

. Concededly, an

administrative directive may be deemed, in one sense, to carry

the full force and effect of law within the administrative

structure. See O'Shea, supra,

(stating

that Attorney General's "Use of Force Policy" which requires

police departments to complete and maintain UFRs "has the force

of law for police entities," based on the Attorney General's

authority under the Criminal Justice Act of 1970, N.J.S.A.

19 For example, the Court has held that police officers must retain notes of witness interviews, in order to preserve them for post-indictment production under Rule 3:13-3. State v. W.B.,

(2011) (stating "law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports"). The Court has also mandated the creation and retention of documents pertaining to identifications "as a condition to the admissibility." State v. Delgado,

(2006); see also R. 3:11. There is no indication the Court intended or anticipated that such records would, as a consequence of its mandate, be subject to access under OPRA as government records "required by law to be . . . kept on file," even before a defendant is entitled to their release under court rule. Rather, the failure to maintain these records may result in an adverse inference charge in the case of destroyed notes,

, or the exclusion of an out-of- court identification.

.

39 A-2523-14T1 52:17B-97 to -117 to adopt "guidelines, directives and policies

that bind local police departments"). On the other hand, the

same may be said of the BPU order in In re Request — it had the

force of law as it concerned the regulated utilities. In re

.

The issuance of directives, such as the UFR directive,

usually lies within the Attorney General's discretion and may be

withdrawn or modified at will. They also are internal to the

agency and related agencies. Attorney General directives

address other aspects of the investigative process. See, e.g.,

(discussing Attorney General

guidelines requiring preservation of materials pertaining to

identification procedures). On the other hand, "[a]gencies

should act through rulemaking procedures when the action is

intended to have a 'widespread, continuing, and prospective

effect,' deals with policy issues, materially changes existing

laws, or when the action will benefit from rulemaking's flexible

fact-finding procedures." In re Provision of Basic Generation

Serv. for Period Beginning June 1, 2008,

(2011) (quoting Metromedia, Inc. v. Dir., Div. of Taxation,

(1984)); see also Woodland Private Study Grp.

v. N.J. Dep't of Env't Prot.,

(1987)

(analyzing the difference between internal agency directives,

40 A-2523-14T1 which may be adopted informally, and directives that affect the

general public and must be adopted through formal rule-making);

In re

(discussing

administrative agency's informal action, as distinct from formal

rulemaking or adjudication).

Treating internal agency directives on record creation or

retention as "required by law" would also create an anomaly

under the law. OPRA retained the provision of the RTKL that

authorizes agencies to exempt documents from disclosure by

"regulation promulgated under the authority of any statute or

Executive Order of the Governor." N.J.S.A. 47:1A-1; see also

(stating this exemption power was

not intended to be "unlimited" and must "be exercised only when

necessary for the protection of the public interest"). Thus, an

agency may, through formally promulgated regulations, both

require the making of a document, and exempt it from access. By

its plain language, the exemption power refers to promulgated

regulations, and does not extend to informally adopted agency

directives. See N.J.S.A. 47:1A-1. It would, therefore, be

anomalous to treat documents required or preserved pursuant to

internal directives as documents "required by law," since the

41 A-2523-14T1 directive's author would lack the accompanying power to control

its accessibility, which is otherwise granted under OPRA.20

C.

We interpret next what constitutes a document that

"pertains" to a criminal investigation. The issue is relevant

both to (1) the interpretation of "criminal investigatory

record" in N.J.S.A. 47:1A-1.1 — which is defined as a document

that "pertains to any criminal investigation or related civil

enforcement proceeding" and is "not required by law to be made,

maintained or kept on file"; and (2) the interpretation of the

ongoing investigation exception in N.J.S.A. 47:1A-3(a) — which

exempts from disclosure records that "pertain to an

investigation in progress by any public agency" if release would

be "inimical to the public interest" and the record was not

already open for public inspection.

The ongoing investigation exception, as noted above, was

first established in the RTKL. OPRA added the "exception-to-

the-exception" for documents already open to the public. L.

2001, c. 404, § 5. Aside from minor wording changes, the RTKL

20 To the extent the panel's decision in O'Shea relied upon the opposite view, that is, that the "required by law" standard may be satisfied by "guidelines, directives and policies," O'Shea, supra,

, we respectfully disagree. However, the holding in O'Shea was also based on the fact that the UFRs did not "pertain" to an investigation.

.

42 A-2523-14T1 exception remained unchanged in OPRA. However, we have found no

pre-OPRA, RTKL case that expressly interprets the phrase

"pertain to an investigation."

OPRA cases have established that a document that is created

before an investigation starts, and therefore does not "pertain"

to an investigation at that point, does not change its character

once an investigation begins, even if the document relates to

the investigation. For example, a 9-1-1 tape created before an

investigation begins does not pertain to an investigation

commenced later, even if triggered by the 9-1-1 call. Courier

News, supra,

. In Serrano, the

court addressed the "pertain to an investigation" language used

in the ongoing investigation exception.

. "The tape that is the subject of this

appeal was created hours before the police investigation began.

If it was a public record when created, then it would remain

accessible to the public under N.J.S.A. 47:1A-3(a) even if its

release would be inimical to the public interest." Ibid.; cf.

O'Shea, supra,

(rejecting argument

that a UFR generically pertains to a criminal investigation, as

"it cannot be assumed that a UFR might become part of a criminal

investigation"). On the other hand, when an officer turns on a

mobile video recorder to document a traffic stop or pursuit of a

43 A-2523-14T1 suspected criminal violation of law, that recording may pertain

to a "criminal investigation," albeit in its earliest stages.21

However, there are other documents that police prepare,

whether or not an investigation is commenced, which may partly

pertain to an investigation that has already commenced. For

example, daily activity logs or CAD reports are apparently

prepared on a regular basis, regardless of whether an officer is

performing a community caretaking function, such as assisting a

boy who fell off a bicycle; or investigating a crime, such as

interviewing a confidential informant regarding an ongoing

investigation into gang activity. An entry about the former

activity would not "pertain to an investigation," but the latter

would. Similarly, a UFR prepared after a police officer shoots

a dangerous dog may not pertain to a criminal investigation.

However, a UFR documenting the use of force in the course of

arresting a criminal suspect would. We conclude that entries

related to criminal investigative activities are properly deemed

to "pertain[] to any investigation."

21 We do not address whether a recording initiated to document a suspected non-criminal violation of motor vehicle law or a subsequent stop would properly be deemed to "pertain[] to any criminal investigation." See N.J.S.A. 47:1A-1.1.

44 A-2523-14T1 D.

Applying these principles, we are persuaded that most of

the documents sought by the reporters fall within the criminal

investigatory records exception, because they are "not required

by law to be made, maintained or kept on file" and they

"pertain[] to any criminal investigation." See N.J.S.A. 47:1A-

1.1.

The reporters seek documents that report officers' daily

activities, including CAD reports detailing information received

by or from police dispatchers, log book notations, daily

activity logs, daily bulletins, daily statistical sheets, tally

sheets, and vehicle logs. The requesters also seek various

forms of audio and video recordings (as well as transcriptions),

including recordings of the pursuit and shooting; communications

among police officers and between police officers and others;

and recordings made by mobile video recorders (MVRs). The

reporters also requested various reports or officer work

product, including UFRs, police reports, incident reports,

operation reports, investigation reports, offense reports, and

supplemental reports. All of these documents are exempt. No

law cited to the court required their creation or retention.

They pertain to a criminal investigation, to the extent the

entries concern or address an officer's involvement in the

45 A-2523-14T1 search for the attempted burglary suspect, the pursuit of

Ashford and Bynes once they were identified as suspects, the

shooting of Ashford and arrest of Bynes, the subsequent

investigational activities related to Bynes's arrest, and the

SRT investigation of the fatal shooting.

We reject NJMG's argument that these documents are

"required by law" because the various LEAs are governed by the

DPRL and regulations, which require adoption of record retention

schedules. N.J.S.A. 47:3-19, -20. No person may destroy public

records under his or her control without obtaining consent under

the DPRL or regulations thereunder. N.J.S.A. 47:3-17. These

provisions of law have been in place unchanged since 1953. L.

1953, c. 410, §§ 5, 6.

The Court in Nero expressly declined to read the DPRL "in

pari materia" with the RTKL. Nero, supra,

. As

discussed above, we have also repeatedly held that general, non-

specific record preservation statutes or regulations do not

satisfy the "required by law" standard under the RTKL. See

Daily Journal, supra,

(regarding

N.J.S.A. 40:48-6, stating that a statute that "provides how

. . . governmental material shall be kept in order to secure the

material against fire and ordinary theft" does not satisfy the

"required by law" standard);

A-2523-14T1 Super. at 580 (stating that statute or code that merely

"provide[s] how material which is in the possession of the

government, whether by virtue of some legal requirement or

otherwise, is to be maintained" does not satisfy the RTKL).

We reach the same conclusion with respect to general

retention schedules adopted pursuant to the DPRL. Were we to

reach the opposite conclusion, then the criminal investigatory

records exception would have virtually no effect. Particularly

in light of the legislative history, and the RTKL case-law

shielding criminal investigatory records, we shall not presume

that the exception is insignificant surplusage. See In re Civil

Commitment of J.M.B.,

("Interpretations that

render the Legislature's words mere surplusage are

disfavored."), cert. denied,

,

,

(2009).

Requested records that fall outside the criminal

investigatory records exception include the recording of the

9-1-1 call, which are "required by law" to be maintained for no

less than thirty-one days according to promulgated regulations.

N.J.A.C. 17:24-2.4.22 Also outside the exception are motor

22 We do not address whether a countervailing privacy claim by a 9-1-1 caller may lead to the withholding of a 9-1-1 recording, notwithstanding that it is not exempt from the definition of (continued)

47 A-2523-14T1 vehicle accident reports, which are required by law to be made

available to the public. N.J.S.A. 39:4-131. In addition, those

portions of the CAD records and other logs of police activity,

which do not discuss or relate to the criminal investigations,

are excepted because they do not "pertain[] to any criminal

investigation."

IV.

As discussed above, even if documents are not exempt from

OPRA as criminal investigatory records, they may be shielded

from public access if they pertain to an investigation in

progress and release would be "inimical to the public interest."

We have already reviewed the meaning of the "pertain to"

language. The related issue presented on appeal is the trial

court's rejection of the State's argument that release of the

withheld documents would be "inimical to the public interest."

Although we conclude that most of the records requested were

exempt under the criminal investigatory records exception, for

the sake of completeness we address the trial court's

consideration of this issue.

A case-by-case analysis is appropriate. Cf.

(rejecting, under common law analysis, after

(continued) government record. See

- 72 (Coburn, J., concurring).

48 A-2523-14T1 review of disputed documents, defendant's claim that public

interest in confidentiality outweighed plaintiff's interest in

access in the case presented, but observing "nevertheless the

facts of another case may quite possibly call for a different

result"). The Irval Court stated that, as a general rule, a

trial judge should "call for and examine the report or other

record" to determine "[i]f in his sound judgment some part or

all of the information therein contained should not be revealed

. . . ."

In our own decision in Irval, we rejected the general

argument that "if inspection [by the public] of utility company

accident reports were permitted the reports would be less than

candid." Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs.,

(App. Div. 1971), aff'd,

(1972). Moreover, we found no threat to the public interest in

permitting review of the Board's own reports, once its

investigation was completed. Id. at 345-46.

In Serrano, we were unpersuaded that release of 9-1-1

recordings was "inimical to the public interest" assuming for

argument's sake they were deemed to pertain to an ongoing

investigation.

. In

particular, we rejected the argument that release of the 9-1-1

tape to a news organization, and its anticipated widespread

49 A-2523-14T1 dissemination, would interfere with the selection of a jury.

We surmised that the 9-1-1 caller had no presumed

expectation of privacy; the public's interest in release was

substantial; any difficulties in impaneling a jury would be

manageable; and we noted the attorney for the defendant agreed

that release would not deprive the defendant of a fair trial.

.

In Courier News, we likewise rejected the argument that

release of 9-1-1 recordings was "inimical to the public

interest," where the defendant asserted that public

dissemination of the recording would risk tainting the jury

pool, and anticipated playback at trial of an electronically

enhanced version of the recording would cause juror confusion.

Courier News, supra,

. We found that

the first concern did not present an insurmountable barrier to

selecting a fair and unbiased jury, and the second concern was

purely speculative.

On the other hand, our courts have recognized "a real need

to deny access where there is an ongoing law enforcement

investigation, or where the protection of witness information or

a witness's identity is at stake. . . ."

(applying common law balancing). The

Court in Marshall recognized the public interest in

50 A-2523-14T1 confidentiality of ongoing criminal investigations, albeit in

the context of applying the common law right to inspect public

documents:

The receipt by appropriate law enforcement officials of information concerning the existence or occurrence of criminal activities is critical to the uncovering and the prosecution of criminal offenses, and is thus crucial to effective law enforcement. In order that the flow of such information be not impeded or cut off, the law has long treated the information as confidential and privileged against disclosure, thereby protecting witness security, the State's relationship with its informants and witnesses, and other confidential relationships, among other things.

[Marshall, supra,

(quoting River Edge Sav. & Loan Ass'n, supra,

).]

See also

(discussing "the

vital public interest in . . . the success of criminal

prosecutions and the protection of potential witnesses and

informants").

In reference to criminal investigations, the need for

confidentiality generally declines once the investigation is

closed; but the need for confidentiality, at least as to some

materials — such as those pertaining to confidential informants

— may survive. See

(recognizing

"the need for confidentiality is greater in pending matters than

in closed cases," but stating "[e]ven in closed cases . . .

51 A-2523-14T1 attorney work-product and documents containing legal strategies

may be entitled to protection from disclosure"); River Edge Sav.

& Loan Ass'n, supra,

(noting that "even

inactive investigatory files may have to be kept confidential in

order to convince citizens that they may safely confide in law

enforcement officials") (internal quotation marks and citation

omitted); cf.

(stating that the "same values do not survive a balancing after

the investigation is closed").

The trial court dismissed as exaggerated the State's fear

that premature release of witness statements might taint other

witnesses' independent recollections and undermine the integrity

of the investigation into the police shooting. However, absent

review of Lt. McGrath's proposed ex parte, in camera submission,

we cannot be so sure.

First, we are convinced that where an investigation is

ongoing, the public reporting of one witness's recollections may

risk causing another witness to question his or her own

recollections, or intentionally or unintentionally conform them

to the reported reality. Assessing the extent of the risk is a

fact-sensitive inquiry. Notably, the United States Department

of Justice recently documented that phenomenon in its report on

the fatal police shooting in Ferguson, Missouri. See Dep't of

52 A-2523-14T1 Justice Report Regarding the Criminal Investigation into the

Shooting Death of Michael Brown by Ferguson, Missouri Police

Officer Darren Wilson (March 4, 2015) 46, 58, available at

http://www.justice.gov/sites/default/files/opa/press-releases/

attachments/2015/03/04/doj_report_on_shooting_of_michael_brown.

pdf (discussing witnesses' alteration of statements after

watching media reports). In other contexts, the Court has

recognized the fallibility of memory, and its susceptibility to

suggestion and error. State v. Henderson,

(2011). We have also endorsed prophylactic measures to prevent

witnesses, who may be in league with each other, from learning

what others have said and tailoring their testimony accordingly.

See Morton Bldgs., Inc. v. Rezultz, Inc.,

(1992) (addressing a trial court's discretion regarding witness

sequestration).

Second, the trial court's rejection of the State's concern

was premature, as the court did not review the documents at

issue, nor permit the State to explain, ex parte, the reasons

why release would compromise its ongoing investigation. An

assessment of the public's interest will often require review of

requested documents in camera. See

;

. In some cases, in

camera review of a Vaughn index may be appropriate, because the

53 A-2523-14T1 release of even a "detailed Vaughn index" to a requesting party

"may in some cases enable astute parties to divine with great

accuracy the names of confidential informers, sources, and the

like . . . ."

.

Where appropriate, a court should also allow the

governmental entity to submit an ex parte explanation as to why

disclosure is inimical to the public interest. "Because of the

in camera nature of the review, the custodian, if necessary or

appropriate, can explain ex parte the significance of documents

and the impact their disclosure might have and the trial judge

can state his reasons for non-disclosure."

(applying common law right to inspect).

Applying these principles, we conclude it was error for the

court to deny the State's motion to submit the proposed McGrath

certification ex parte and in camera. As discussed above, there

are few requested records in this case that fall outside the

"criminal investigatory record" exception; any that did would

still be subject to review under the "ongoing investigation

exception." Moreover, the foregoing discussion is relevant to

the court's consideration of NJMG's claim of a common law right

to inspect the documents, which we discuss below.

54 A-2523-14T1 V.

With respect to section 3(b), the State contends: (1) NJMG

is entitled only to the information delineated in the

subsection, and not documents that contain such information; and

(2) the State disclosed all the information required. We agree

with the State as to the first point, but not as to the second.

Had the Legislature intended section 3(b) to oblige a

public agency to release records, as opposed to information, it

would have said so. We are guided by the plain language of the

statute. In interpreting a statute, "[i]f the plain language is

clear, the court's task is complete." In re Kollman,

(2012). We assign to words their generally accepted

meaning. In re Petition for Referendum on Trenton Ordinance 09-

02,

(2010). We must "read every word in a

statute as if it was deliberately chosen and presume that

omitted words were excluded purposefully." State v. Scott,

(App. Div. 2012) (internal quotation marks

and citation omitted), certif. denied,

(2013). In

particular, we presume the Legislature acts intentionally when

it uses "particular language in one section of the statute but

omits it in another section of the same Act." N.J. Dep't of

Children & Families v. A.L.,

(2013) (internal

quotation marks and citation omitted).

55 A-2523-14T1 We conclude the word "information," as used in the statute,

is not synonymous with tangible records, such as written

documents, notes, or recordings that contain the specified

information. The required "information" may be conveyed in a

newly drafted press release. Conceivably, the information could

be provided in a public oral announcement.

The principal provision of OPRA generally authorizes access

to "government records," N.J.S.A. 47:1A-1 (emphasis added),

defined to include, among other things, tangible items such as

"any paper, written or printed book, document, drawing, map,

plan, photograph, microfilm, data processed or image processed

document." N.J.S.A. 47:1A-1.1. The drafters recognized that

"information" is not limited to its tangible forms. See

N.J.S.A. 47:1A-1.1 (stating that "[g]overnment records" include

"information stored or maintained electronically," exempting

"information received by" a legislator, "including but not

limited to information in written form or contained in any e-

mail or computer data base") (emphasis added); N.J.S.A. 47:1A-

2.2 (discussing government records containing personal

"information"). Section 3(b) refers only to "information" and

not specific tangible records.

As discussed above, section 3(b) was drawn from Governor

Whitman's executive order. That order expressly authorized

56 A-2523-14T1 public officials to respond orally to requests for the specified

information. "The law enforcement official responding to oral

requests should make best efforts to respond orally over the

telephone . . . ." Exec. Order No. 69 (Whitman), ¶ 3. Although

this provision was not imported into OPRA, we reject NJMG's

assertion this non-inclusion imbues "information" with a

different meaning. Therefore, we conclude the State was

permitted to comply with section 3(b) by providing the

"information" in a press release.

However, we agree with NJMG that the State failed to

include all the information required by the law. In particular,

the State omitted "information as to the identity of the

investigating and arresting personnel and agency and the length

of the investigation." N.J.S.A. 47:1A-3(b). The press release

also did not include information on the "use of weapons and

ammunition by . . . the police."

The OAG did not "issue

a brief statement" explaining the omissions. Nor did the State

argue that its omissions were warranted because release of the

information would "jeopardize the safety of any person or

jeopardize any investigation in progress or may be otherwise

inappropriate to release."

The State shall promptly

release the omitted information, or, upon remand, make a

57 A-2523-14T1 sufficient showing under section 3(b) to the trial court why it

should be excused from doing so.

VI.

Lastly, we consider the State's appeal from the trial

court's order compelling release of the documents pursuant to

the common law right of access. The State concedes the

requested records are public records, subject to the common law

right to inspect. See

(stating

"[t]he elements essential to constitute a public record are

. . . that it be a written memorial, that it be made by a public

officer, and that the officer be authorized by law to make it")

(internal quotation marks and citation omitted). The State also

concedes that NJMG has the requisite standing to request

inspection. See, e.g., S. Jersey Publ'g Co. v. N.J. Expressway

Auth.,

(1991) ("[A] newspaper's interest in

keep[ing] a watchful eye on the workings of public agencies is

sufficient to accord standing under the common law.") (internal

quotation marks and citation omitted); Irval, supra,

(stating that some showing of interest is required to

enforce the common law right to inspect). The State challenges

the court's balancing of NJMG's interest in the documents

against the LEAs' interest in confidentiality.

58 A-2523-14T1 The principles governing the common-law balancing are well-

settled. We discussed some of them in our discussion above of

the balancing under the "inimical to the public interest"

standard under the RTKL and OPRA. The balancing of the

competing interests in disclosure and confidentiality often

involves an "exquisite weighing process by the trial judge."

(internal quotation marks and

citation omitted). The Loigman Court recognized the "vital

public interest in . . . the success of criminal prosecutions

and the protection of potential witnesses and informants."

. Toward that end, pursuant to executive order, NJSP

investigative files may not be disclosed without court order or

executive order.

at 107-08 (citing Exec. Order No. 48

(Hughes)).

Since there is a high degree of need for confidentiality in such materials, more than a showing of good faith and citizen status will be required to overcome the public interest in confidentiality. It does not constitute a clear showing of such public need to say only that there may be something corrupt that should be exposed for the benefit of the public.

[Id. at 108.]

Loigman specifically addressed a request under the common

law to inspect documents related to an OAG audit of a

prosecutor's office's confidential account.

102

59 A-2523-14T1 N.J. at 101. The Court identified several factors the trial

court should consider in balancing the requester's needs against

the public agency's interest in confidentiality:

(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. Against these and any other relevant factors should be balanced the importance of the information sought to the plaintiff's vindication of the public interest.

[Id. at 113 (citation omitted).]

The motivation of the requester is a relevant consideration

in the balancing process under the common law. "Somewhat

different but related considerations arise when the citizen

seeks access to information to further a public good" as opposed

to a private interest.

. In

connection with requests for a criminal investigatory file, the

60 A-2523-14T1 Court held in Marshall that "the common-law right to inspect

public documents may not be invoked in a pending criminal case

by a defendant seeking discovery rights beyond those granted by

Rule 3:13-2 to -4." Marshall, supra,

.

As we noted, the need for confidentiality in investigative

materials may wane after the investigation is concluded. With

respect to grand jury proceedings, for example, "our case law

has with increasing frequency expanded the right of victims and

some other persons with particular interest to gain access [to

grand jury transcripts] after completion of the criminal case."

Shuttleworth,

; see also State v.

Doliner,

(1984) (stating that "a strong showing

of a particularized need" must be made to secure access to grand

jury materials).

We applied the Loigman principles in Shuttleworth which, as

noted above, involved the request for documents pertaining to a

Camden Police investigation into the fatal police shooting of a

suspect in custody.

. The investigation in Shuttleworth was closed, and a

determination had already been made not to prosecute the

involved officer or officers.

We affirmed the trial

court's release of an autopsy report "precisely because the

investigation was closed without the filing of charges."

61 A-2523-14T1 Shuttleworth, supra,

. On the record

presented, we were unable to determine which other documents the

trial court actually ordered disclosed pursuant to the common

law right to inspect. We remanded for an in camera review of

documents listed on a Vaughn index.

.

By contrast, in Daily Journal, we affirmed the trial

court's denial of access to records of a grand jury presentment

regarding alleged government corruption. Daily Journal, supra,

. Although the investigation was also

closed, the trial court found that the interests in

confidentiality were warranted, particularly in light of the

unique nature of the presentment process.

. Other

circumstances may establish an overriding need for

confidentiality, despite the closing of an investigation. See

; River Edge Sav. & Loan Ass'n,

supra,

.

As a procedural matter, a court must make a threshold

determination whether an in camera review of documents is

warranted.

. The review itself

may cause unjustified risks to the public's interest in

conducting effective criminal investigations.

The court

may first require the submission of a Vaughn index, to identify

the documents at issue, and the asserted rationale for

62 A-2523-14T1 nondisclosure.

. The court may, if appropriate,

require the submission of the index in camera, as well as a

further explanation of the reasons for non-disclosure.

.

Applying these principles, the trial court's order granting

access to the requested materials is flawed because it is based

on an incomplete record. We recognize the intense public

interest in a case involving the possible use of excessive force

by police. The issue has arisen in cases across the country.

The public's need to know is not limited to the public's

interest in knowing what happened in a particular case.

Information may assist the public in evaluating the adequacy of

police procedures in general, and the claim that police force is

used disproportionately against members of minority groups.

Access to records related to fatal police shootings may also be

relevant to public policy debates about proposed reforms.

In this case, the discrepancy between the OAG's press

release and the investigating detective's subsequent

certification raises obvious questions about what happened

immediately prior to the shooting. As noted, it was asserted in

the press release that Ashford rammed a police vehicle before

being shot. The detective's certification stated only that

Ashford's engine revved "as if" to force his way out from the

63 A-2523-14T1 spot where the car was lodged against the guardrail. The

discrepancy between these two documents also raises questions

about the reliability or accuracy of the information upon which

the press release was based.

The requesters' and the public's interest in access must be

balanced against the substantial interests in conducting a

thorough and effective investigation, untainted by premature

release of investigative materials. In order to engage in a

proper balancing of interests, the trial court should have

considered the proposed in camera and ex parte submission by Lt.

McGrath. See

. If

the court were still unpersuaded that non-disclosure was

warranted, the court should have ordered the State to prepare a

Vaughn index, for submission in camera if appropriate. See

. The court should have

reviewed the documents themselves in camera, applying the

Loigman factors, and retaining the ability to release a document

in a redacted form.

The government's interest in confidentiality may decline

once investigative activity ceases. The investigation was

ongoing according to certifications submitted to the trial court

in December. Over eight months have elapsed since the SRT began

its investigation. It is unclear that the investigation is

64 A-2523-14T1 still ongoing and, if it is, the nature of those continuing

activities. The trial court should ascertain, based upon in

camera submissions if appropriate, the current status of the

investigation, as part of its balancing of competing interests.

Conceivably, one part of the investigation may be closed,

while another part is still active. For example, the gathering

of evidence of alleged criminal activity by Ashford and Bynes

may have ceased, in view of their deaths. In other respects,

records regarding the actions of Ashford and Bynes, and

statements of Bynes, may still be relevant to the SRT's work.

Such facts may be relevant in justifying the release of some

documents, but not others.

VII.

In sum, we remand to the trial court to reconsider

plaintiff's requests in light of the principles set forth in

this opinion. We have identified those records that are exempt

from OPRA pursuant to the criminal investigatory records

exception. N.J.S.A. 47:1A:1.1. With respect to the requests

for any records that fall outside that exception, the court

shall consider whether their release would be inimical to the

public interest under N.J.S.A. 47:1A-3(a). In so doing, the

court shall review, in camera, McGrath's proposed ex parte

certification. However, the State shall promptly comply with

65 A-2523-14T1 its disclosure obligation under N.J.S.A. 47:1A-3(b), or make a

sufficient showing to the trial court why it should be excused

from doing so.

The trial court shall also reconsider its determination

that plaintiffs are entitled to access under the common law. In

so doing, the court shall consider McGrath's proposed

certification. The court shall also determine whether a Vaughn

index should be prepared and, if so, whether it should be

submitted in camera. In light of those submissions, the court

shall determine whether to review the withheld documents in

camera, and whether release of the requested records is

warranted, in whole or in part, with or without redaction.

Affirmed in part, reversed in part, and remanded for

reconsideration. We do not retain jurisdiction.

66 A-2523-14T1