Opinion
DOCKET NO. A-3483-14T3
09-30-2016
NORTH JERSEY MEDIA GROUP INC., Plaintiff-Appellant/Cross-Respondent, v. TOWNSHIP OF NUTLEY, EVELYN ROSARIO, RMC, CMC, in her capacity as OPRA Custodian for the Township of Nutley, ESSEX COUNTY PROSECUTOR'S OFFICE, and DEBRA G. SIMMS, [Deputy Chief Assistant Prosecutor], in her capacity as OPRA Custodian for the Essex County Prosecutor's Office, Defendants-Respondents/Cross-Appellants.
Samuel J. Samaro argued the cause for appellant (Pashman Stein and Jennifer A. Borg, attorneys; Mr. Samaro and Ms. Borg, of counsel; Mr. Samaro and CJ Griffin, on the briefs). Alan Genitempo, Township Attorney, argued the cause for respondents/cross-appellants Township of Nutley and Evelyn Rosario. Alan Ruddy, Assistant County Counsel, argued the cause for respondents/cross-appellants Essex County Prosecutor's Office and Debra Simms (Courtney M. Gaccione, Essex County Counsel, attorney; Mr. Ruddy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal before Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1913-13. Samuel J. Samaro argued the cause for appellant (Pashman Stein and Jennifer A. Borg, attorneys; Mr. Samaro and Ms. Borg, of counsel; Mr. Samaro and CJ Griffin, on the briefs). Alan Genitempo, Township Attorney, argued the cause for respondents/cross-appellants Township of Nutley and Evelyn Rosario. Alan Ruddy, Assistant County Counsel, argued the cause for respondents/cross-appellants Essex County Prosecutor's Office and Debra Simms (Courtney M. Gaccione, Essex County Counsel, attorney; Mr. Ruddy, on the brief). PER CURIAM
Plaintiff North Jersey Media Group Inc. (NJMG) appeals from orders entered by the Law Division, which declare that the Essex County Prosecutor's Office (ECPO) and the Township of Nutley (Township) violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, in their responses to NJMG's request for certain governmental records, and awarded NJMG attorney's fees. The Township and the ECPO cross-appeal from the trial court's orders. For the reasons that follow, we affirm on the appeal and reverse on the cross-appeals.
I.
NJMG's requests for governmental records pertain to an incident that occurred on December 21, 2012, when the security manager at the ShopRite supermarket on Franklin Avenue in the Township approached John Waltenberg, who was allegedly seen leaving the store without paying for certain merchandise. The security manager approached Waltenberg and asked to see his receipt for the merchandise. Waltenberg dropped the items and fled the store. The security manager pursued Waltenberg, who ran onto the street, where he was stuck by a motor vehicle.
Officer Eric Stablinski of the Nutley Police Department (NPD) witnessed the accident and responded immediately. Officer Stablinski requested the assistance of other police officers and emergency medical service workers, who came to the scene to render aid to Waltenberg and secure the location. The NPD notified the ECPO of the accident, and Detective James Contreras of the ECPO responded to the scene to lead the investigation.
On January 22, 2013, a reporter for The Nutley Sun, a weekly newspaper published by NJMG, submitted a request to the Township for the production of certain records pertaining to the accident, pursuant to OPRA and the common law. NJMG sought motor vehicle accident or incident reports, audio recordings and transcripts of all 9-1-1 calls and law enforcement dispatch reports, video recordings from any law enforcement vehicles and the ShopRite's security cameras, as well as certain records related to the alleged theft at the store. On January 24, 2013, the Township responded by stating that it could not provide the requested records because the ECPO was conducting an ongoing investigation of the accident.
On January 31, 2013, the reporter submitted the same records request to the ECPO. In a letter dated February 8, 2013, Deputy Chief Assistant Essex County Prosecutor Debra G. Simms stated that the records sought were exempt from disclosure under OPRA and the common law. Even so, Simms produced a copy of a document which included parts of the New Jersey Crash Investigation Report (CIR) related to the incident. She also produced copies of two incident reports regarding the accident, with certain redactions.
In her letter, Simms stated that the redactions were made because release of the redacted information would jeopardize the ongoing investigation of the accident, and would be harmful to a bona fide law enforcement purpose. Simms also stated that once the ECPO completed its investigation, it would release un-redacted copies of these documents.
On March 11, 2013, NJMG filed its complaint in this case, alleging that the Township and the ECPO violated OPRA by failing to: produce the records it requested, provide a lawful basis for denying access, identify the records at issue and the specific basis for withholding each record, and provide an index of all of the records that defendants considered to be exempt, in whole or part, from disclosure. In addition, NJMG alleged that defendants violated the common law right of access to governmental records by failing to disclose the requested records.
On August 19, 2013, the ECPO advised NJMG that its investigation was complete, and it provided NJMG with copies of the complete CIR, the ECPO's investigation reports, the final autopsy report, the crime-scene preliminary report, a fatal accident investigation report, the Township's investigation reports, and a fatal accident report. On September 4, 2013, the Township provided NJMG with copies of the CIR without redactions, as well as the Township's investigation reports.
On October 9, 2013, NJMG's counsel wrote to the Township and the ECPO, and asserted that their supplemental responses to the records requests were deficient. Counsel noted that the Township and the ECPO had not produced the requested audio recordings or transcripts of the 9-1-1 and police dispatch calls, video recordings from the law enforcement vehicles, or surveillance tapes from ShopRite's security cameras.
The Township responded in a letter dated October 22, 2013. The Township stated that it did not have any audio recordings or transcripts of 9-1-1 and police dispatch calls, or videotapes from any law enforcement vehicle. The Township also stated that it did not have any surveillance tapes from the ShopRite store. On December 27, 2013, the ECPO provided NJMG with video footage from ShopRite's security cameras.
II.
In April 2014, after the parties had engaged in discovery, NJMG filed a motion for summary judgment. The judge heard oral argument on June 6, 2014, and thereafter filed a written opinion. The judge found that the CIR was exempt from disclosure under N.J.S.A. 47:1A-3a because it "pertained to an investigation in progress" by the ECPO. The judge rejected NJMG's contention that N.J.S.A. 39:4-131 required prompt disclosure of the CIR.
The judge noted that N.J.S.A. 39:4-131 provides that a CIR "shall not be privileged or held confidential," but the judge found that the statute could be "reconciled" with the exemption in OPRA for records pertaining to an ongoing investigation by a public agency if disclosure is deferred until the completion of the investigation. The judge determined that the Township did not violate OPRA by failing to provide NJMG with access to the CIR until the ECPO completed its investigation.
The judge also determined that the ECPO's response to NJMG's OPRA request was timely and specific. The judge stated that the redactions the ECPO made to the three records it initially produced were permitted by N.J.S.A. 47:1A-3a. The judge found that the ECPO did not possess any record that it failed to produce at the conclusion of its investigation, and that the late production of the videotape from ShopRite's security cameras was not a knowing and willful violation of OPRA. The judge concluded that NJMG was not entitled to summary judgment on its claim against the ECPO.
The judge determined, however, that the Township's response to NJMG's request was deficient because the Township had not provided specific reasons for the denial of access to the records. The judge stated that the Township's "blanket refusal" to produce the records "had consequences" because it "may have precluded [the Township from making] a more thorough analysis of whether [the] audio tapes of the [9-1-1] calls and/or [police] dispatches, videotapes of mobile recorders in police vehicles[, and the CIR had been] properly withheld."
The judge stated that the Township's response made it impossible to determine whether any of the requested audio and video recordings existed and were recycled in the ordinary course of business, or whether such recordings ever existed. The judge also stated that although the Township had asserted that no 9-1-1 calls had been made in connection with the accident, the Township did not present any competent evidence to support that assertion.
The judge found that the 9-1-1 tapes were government records for purposes of OPRA, and they were not exempt from disclosure as "criminal investigatory records." The judge noted that under Serrano v. South Brunswick Twp., 358 N.J. Super. 352 (App. Div. 2003), a record is not part of a criminal investigatory file if it was created before the investigation began.
The judge wrote, "[w]hile any [9-1-1] calls would have been [made] roughly contemporaneous[ly] with [the officer's] arrival at the scene, nothing has been presented that would suggest that such calls were, for that reason, less subject to disclosure." The judge found that, at the very least, the Township should have produced recordings of the 9-1-1 calls within seven days after receiving the OPRA request.
In addition, the judge stated that arguably the Township should also have produced recordings of any police dispatch calls. The judge noted, however, that it was difficult to analyze the Township's obligation to produce "such tapes because their content is unknown." The judge commented that it appeared Officer Stablinski would have made any dispatch calls after he witnessed the accident. The judge stated that an argument could be made that, at that point, an investigation into the accident already had begun. The judge concluded that NJMG was entitled to summary judgment on its OPRA claim against the Township.
The judge entered an order dated June 27, 2014, finding that the Township and its records custodian violated OPRA in responding to NJMG's records request. The order directed NJMG to submit a certification of services in support of an application for an award of attorney's fees pursuant to OPRA.
Thereafter, NJMG filed a motion for reconsideration and argued that the court erred by finding that the Township and the ECPO were not required to provide un-redacted copies of the CIR promptly after NJMG sought that record. The Township filed a cross-motion for reconsideration and argued that the court erred by granting summary judgment to NJMG because there was a genuine issue of material fact as to whether any 9-1-1 calls were made regarding the accident.
After hearing oral argument on the motions, the judge placed her decision on the record. The judge denied the Township's motion for reconsideration, and again determined that the Township had not presented any competent evidence to establish that no 9-1-1 calls had been made regarding the accident. The judge again rejected NJMG's contention that N.J.S.A. 39:4-131 required the ECPO and the Township to promptly provide NJMG with copies of the CIR. However, the judge directed the ECPO to provide a certification identifying the redactions that were made to the documents initially provided, the basis for the redactions, and the reasons why disclosure of the redacted information have been "inimical to the public interest."
On September 10, 2014, the ECPO submitted a supplemental certification from Simms. Discovery was reopened and Simms was later deposed. The judge heard further argument from counsel on November 7, 2014, and placed an oral decision on the record on that date. The judge reaffirmed her decision that N.J.S.A. 47:1A-3a authorized defendants to deny public access to the complete CIR while the ECPO's criminal investigation was ongoing if disclosure of all of the information would be "inimical to the public interest."
The record before us does not include Simms' supplemental certification.
The judge found, however, that the ECPO violated OPRA by failing to inform NJMG that one of the documents it provided was not a copy of the complete CIR and redactions had been made to that document. The judge stated:
I find it totally unacceptable that [the custodian of records] would produce a document that was in essence doctored, in that material was cut out of it without any indication that that had in fact occurred.The judge stated that the ECPO had properly redacted the social security numbers from the three documents it initially provided to NJMG, but the ECPO had not provided a justification for redacting personal information of the driver involved in the accident.
A redaction is one thing because then at least the party knows the type of information that has been redacted and if the party chooses to do so [it] can contest the nature of the redactions, but when the material is simply missing, that essential notice is missing.
Thereafter, the ECPO asked the judge to clarify her decision. The judge responded in a letter dated November 14, 2014. The judge again reaffirmed her decision that OPRA permitted defendants to deny access to the CIR until its investigation of the accident was complete, "regardless of the disclosure requirements of N.J.S.A. 39:4-131."
The judge stated, however, that she had "found a violation of OPRA as the result of the [p]rosecutor's determination to produce the requested report but to excise, without notice, the factual information regarding the circumstances of the accident and the [parts of] the document that contained additional information in that regard." The judge also stated that the redactions of personal information were "excessive and unjustified."
Thereafter, NJMG submitted an application for an award of attorney's fees. Another judge then assumed responsibility for the case, and issued a written opinion dated February 20, 2015, addressing NJMG's fee application.
The judge found that NJMG was a prevailing party under OPRA against both defendants and was therefore entitled to an award of reasonable attorney's fees pursuant to N.J.S.A. 47:1A-6. The judge determined, however, that NJMG had limited success in pursuing its claims against defendants and limited the award to the hours devoted to the claims upon which NJMG prevailed. The judge also found that NJMG was not entitled to costs and expenses under OPRA, and a fee enhancement was not warranted.
The judge awarded NJMG attorney's fees in the amount of $20,550 against the Township, and fees in the amount of $12,030 against the ECPO. The judge memorialized her decision in an order dated February 20, 2015. NJMG filed a notice of appeal on April 6, 2015. Defendants' cross-appeals followed.
III.
On appeal, NJMG argues that the trial court erred by determining that OPRA allowed defendants to defer production of the CIR related to the accident while the ECPO conducted its investigation into the accident. NJMG contends that N.J.S.A. 39:4-131 prevails over the exemption in N.J.S.A. 47:1A-3a for records that pertain to an agency's ongoing investigation. NJMG therefore argues that defendants were both required to provide it with un-redacted copies of the CIR promptly, as required by N.J.S.A. 39:4-131.
We note initially that the trial court's interpretation of the relevant statutes is an issue of law, which we review de novo. 388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 338 (2015) (citing Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 535 (2013)). We also note that an appellate court owes no deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
OPRA provides that all government records are subject to public access, unless otherwise exempt from disclosure. N.J.S.A. 47:1A-1. A request for access to a government record must be in writing and presented to the appropriate custodian of records. N.J.S.A. 47:1A-5g. If the records "custodian is unable to comply with a request for access, the custodian" must "indicate the specific basis therefor on the request form and promptly return it to the requestor." Ibid.
OPRA further provides that if the custodian maintains that "part of a particular record is exempt from public access," the custodian shall "delete or excise" that portion of the record from a copy thereof, and "promptly permit access to the remainder of the record." Ibid. OPRA states that unless a shorter time is otherwise provided by law, the custodian must provide access or deny the request "as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived." N.J.S.A. 47:1A-5i.
The term "governmental record" is defined in OPRA to include any paper, document, or information stored or maintained electronically or by sound recording "that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof[.]" N.J.S.A. 47:1A-1.1. However, under OPRA, a "government record" does not include certain information that is deemed confidential including "criminal investigatory records." Ibid. A "criminal investigatory record" is defined in OPRA as a record "held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding" that is "not required by law to be made, maintained or kept on file." Ibid.
OPRA also provides that when any record or records "shall pertain to an investigation in progress by any public agency, the right of access provided" by OPRA
may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced.
[N.J.S.A. 47:1A-3a.]
A CIR does not fall within the definition of a "criminal investigatory record" in OPRA because it is a document that is required by law to be made, maintained or kept on file. See N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 107 (App. Div.) (noting that motor vehicle accident reports fall outside the exemption for criminal investigatory records because such documents "are required by law to be made available to the public" under N.J.S.A. 39:4-131), leave to appeal granted, 223 N.J. 553 (2015).
Even so, we have held that a document that is not exempt from disclosure as a "criminal investigatory record" may be shielded from disclosure under N.J.S.A. 47:1A-3a if the document relates to an ongoing investigation by a public agency and disclosure would be "inimical to the public interest." N. Jersey Media Grp., supra, 441 N.J. Super. at 107.
Here, NJMG argues that N.J.S.A. 39:4-131 required defendants to provide it with prompt access to the complete CIR, and N.J.S.A. 47:1A-3a did not allow defendants to deny access to the CIR while the investigation was ongoing. N.J.S.A. 39:4-131 states in relevant part:
Every law enforcement officer who investigates a vehicle accident of which report must be made as required in this Title, or who otherwise prepares a written report as
a result of an accident or thereafter by interviewing the participants or witnesses, shall forward a written report of such accident to the [New Jersey Motor Vehicle Commission], on forms furnished by it, within five days after his investigation of the accident.We are convinced, however, that the trial court correctly determined that N.J.S.A. 47:1A-3a supersedes the relevant provisions of N.J.S.A. 39:4-131, and permitted defendants to deny access to the CIR, or parts of that document, while the ECPO investigated the accident.
Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by [N.J.S.A. 47:1A-5]. If copies of reports are requested other than in person, an additional fee of up to $5.00 may be added to cover the administrative costs of the report.
. . . .
The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by [N.J.S.A. 2A:84A-28].
It is well established that "[a] new law altering fundamental assumptions relied upon by the old law will work to supersede earlier inconsistent statutes." N.J. State Police Benevolent Ass'n v. Morristown, 65 N.J. 160, 165 (1974). Furthermore, when a later-enacted law "covers the whole subject" addressed by a prior law, "[t]he reasonable, indeed inescapable, conclusion" is that the Legislature intended the later act "to supplant the earlier law." State v. Roberts, 21 N.J. 552, 555 (1956). See also Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 223 (1960) (later enactment will supersede prior law "if the policies of the statutes cannot coexist").
There is a conflict between N.J.S.A. 39:4-131 and N.J.S.A. 47:1A-3a because the former statute mandates prompt public access to a CIR, whereas the latter statute allows a government agency to deny access to governmental records that pertain to an ongoing investigation and disclosure would be "inimical to the public interest." N.J.S.A. 39:4-131 was enacted before N.J.S.A. 47:1A-3a. Since the later-enacted statute is the most recent expression of the Legislature's intent regarding public access to records that pertain to an ongoing agency investigation, that statute supersedes the mandate for prompt public access to CIRs in the earlier-enacted legislation.
N.J.S.A. 39:4-131 has it source in a statute first enacted in 1928. L. 1928, c. 281. The section of the statute which provides that the information contained in the CIR is available for public inspection was added by an amendment enacted in 1967. See L. 1967, c. 189. OPRA was enacted later. See L. 2002, c. 404. --------
IV.
Next, NJMG argues that even if N.J.S.A. 47:1A-3a supercedes N.J.S.A. 39:4-131, the ECPO failed to show that prompt disclosure of the complete CIR would be "inimical to the public interest." We have held that a governmental record does not become confidential "simply because the prosecutor declares it so." Serrano, supra, 358 N.J. Super. at 367. The government must show that the public interest would be harmed by disclosure. Ibid.
In her letter responding to NJMG's initial request for access to the records, Simms stated that information had been redacted from the CIR and two other documents provided because only six weeks had passed since the accident, and the investigation was still ongoing.
Simms also stated that it would be inappropriate to release the complete CIR and two investigative reports because certain information might be found to be inaccurate or incomplete, and release of such information could jeopardize the entire investigation. We are convinced that the ECPO provided sufficient reasons for its determination that release of the complete CIR would be "inimical to the public interest." See N. Jersey Media Grp., supra, 441 N.J. Super. at 110 (noting that disclosure of witness statements could undermine the integrity of an investigation because it could affect the independent recollections of other witnesses).
V.
In its cross-appeal, the ECPO argues that the trial court erred by finding that it violated OPRA. The ECPO contends that NJMG's claims against it should have been dismissed, and the award of counsel fees against it should be set aside.
As stated previously, in response to its first request for access, the ECPO did not provide the NJMG with a copy of the actual CIR with redactions, but provided NJMG with a document that consisted of parts of the CIR. The trial court found that the original document had been "doctored" and this was "unacceptable." However, as we have determined, N.J.S.A. 47:1A-3a permitted the ECPO to deny NJMG access to all or part of the CIR if disclosure would be "inimical to the public interest."
Here, the ECPO provided NJMG with those sections of the document that the ECPO determined could be disclosed without jeopardizing the ongoing information. Although the ECPO should have provided NJMG a copy of the original CIR with marked redactions, Simms' accompanying letter made clear that redactions had been made to the original.
Moreover, a comparison of the document provided with a complete blank CIR form, which is publicly available on the Motor Vehicle Commission's website, shows that the document provided was not the complete form and that redactions had been made to the section of the CIR which provided a description of the accident.
We agree with the trial court that ordinarily a governmental agency should not make changes to a document that it discloses in response to an OPRA request, but we do not believe that the ECPO violated OPRA because the changes it made to the document were explained sufficiently and were readily apparent. We therefore reject the trial court's conclusion that the ECPO failed to give NJMG sufficient notice that it had redacted parts of the CIR.
The ECPO also argues that the trial court erred by finding that it violated OPRA by making redactions to the three records it initially produced. The trial court found that the ECPO violated OPRA by redacting insurance information, the vehicle identification number of the car involved in the accident, the driver's address, and the driver's license number. The court found that the redactions were "excessive and unjustified."
We are convinced that the ECPO acted reasonably in denying access to the aforementioned information pending completion of its investigation. The redaction of the driver's personal information was permissible under OPRA. See N.J.S.A. 47:1A-1 (agency should safeguard a citizen's personal information if disclosure would violate the citizens' "reasonable expectation of privacy"); and N.J.S.A. 47:1A-5a (requiring redaction of certain specified personal information, including a person's driver's license).
We therefore conclude that the trial court erred by finding that the ECPO violated OPRA. Consequently, NJMG was not a prevailing party as to the ECPO, and the award of counsel fees against the ECPO also must be set aside. Accordingly, we reverse the trial court's order of November 7, 2014, which found that the ECPO violated OPRA, and the order of February 20, 2015, which ordered the ECPO to pay attorney's fees to NJMG.
VI.
In its cross-appeal, the Township argues that the trial court erred by granting summary judgment in favor of NJMG. The Township contends the judgment entered in favor of NJMG and the order awarding NJMG attorney's fees should be set aside.
We are convinced that the trial court erred by finding that the Township violated OPRA by giving a "blanket" denial of access to the records it had requested. As noted previously, the Township denied NJMG's initial OPRA request on the ground that the records sought were subject to an ongoing criminal investigation by the ECPO. Denial of access to the requested records on this basis was permitted by N.J.S.A. 47:1A-3a.
Furthermore, the Township reasonably deferred to the ECPO to determine whether disclosure of any of the requested records would be "inimical to the public interest." Here, the ECPO was engaged in an ongoing investigation of the accident, not the Township. Under the circumstances, the ECPO was better able to assess whether release of requested records would be "inimical to the public interest." Therefore, the Township's response to NJMG's OPRA request was proper.
The trial court also determined that the Township violated OPRA because it failed to produce recordings of 9-1-1 calls promptly after NJMG requested them. The court stated that the 9-1-1 calls may have been made at or about the same time Officer Stablinski arrived on the scene of the accident, but the Township had not established a sufficient basis for withholding access to those recordings. In addition, the court found that the Township should have produced recordings of any police dispatch calls, but noted that such calls would have been made after Officer Stablinski was on the scene and the investigation was underway.
On cross-appeal, the Township argues that summary judgment should not have been granted to NJMG because there is a genuine issue of material fact as to whether any 9-1-1 calls were made. The Township recognizes that the ECPO's investigation report states that the NPD received 9-1-1 calls about the accident, but argues that other evidence shows that no 9-1-1 calls were made. The Township also cites testimony of its senior records room clerk, who said her supervisor told her that there were no 9-1-1 recordings associated with the accident.
There is, however, no need to resolve this factual dispute. As the trial court observed, any 9-1-1 calls would have been made at or about the same time as Officer Stablinski arrived on the scene and began the investigation of the accident. Furthermore, any dispatch calls would have been made some time later. Thus, recordings of any such calls would have been records pertaining to an ongoing investigation of the accident.
We note that the facts presented here are substantially different from the facts in Serrano, where we determined that the recording of a 9-1-1 call did not pertain to an ongoing investigation because the call was made several hours before the investigation began. Serrano, supra, 358 N.J. Super. at 366. In this case, any 9-1-1 or dispatch calls would have been made while the investigation was ongoing.
Therefore, if any recordings of the 9-1-1 and dispatch calls were made, those records come within the purview of N.J.S.A. 47:1A-3a. The Township would not have been required to produce recordings of the calls if disclosure would be "inimical to the public interest." The trial court nevertheless found that even if the calls were made during the investigation, they should have been disclosed. However, as we have determined, the ECPO reasonably decided that disclosure of factual information about the accident would have compromised the ongoing investigation.
Therefore, we conclude the trial court erred by finding that the Township violated OPRA when it responded to NJMG's request for records. Accordingly, we reverse the court's order of June 27, 2014, granting summary judgment in favor of NJMG on its OPRA claim against the Township, and the order of February 20, 2015, awarding attorney's fees against the Township.
In view of our decisions on the cross-appeals, we need not consider NJMG's contention that the trial court erred by refusing to award costs and expenses on its application for attorney's fees.
Affirmed on the appeal; reversed on the cross-appeals. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION