Opinion
DOCKET NO. A-2103-11T3 DOCKET NO. A-2396-11T3
05-14-2015
NEW JERSEY SECOND AMENDMENT SOCIETY, Plaintiff-Appellant, v. DIVISION OF STATE POLICE OF THE NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, Defendant-Respondent. IN RE ADOPTION OF N.J.A.C. 13:1E-3.
Richard Gutman argued the cause for appellant New Jersey Second Amendment Society (A-2103-11). Janie Byalik argued the cause for appellant American Civil Liberties Union of New Jersey (A-2396-11) (Pashman Stein, P.C., attorneys; Dennis T. Smith and Ms. Byalik, on the brief). Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent Division of State Police of the New Jersey Department of Law and Public Safety (John J. Hoffman, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel and on the brief; Justin L. Conforti, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1143-11 (A-2103-11) and from the Office of Law and Public Safety (A-2396-11). Richard Gutman argued the cause for appellant New Jersey Second Amendment Society (A-2103-11). Janie Byalik argued the cause for appellant American Civil Liberties Union of New Jersey (A-2396-11) (Pashman Stein, P.C., attorneys; Dennis T. Smith and Ms. Byalik, on the brief). Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent Division of State Police of the New Jersey Department of Law and Public Safety (John J. Hoffman, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel and on the brief; Justin L. Conforti, Deputy Attorney General, on the brief). PER CURIAM
The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to-13, generally provides for ready access to "government records" unless they are "exempt from such access by . . . regulation promulgated under the authority of any statute or Executive Order of the Governor[,]" or by "Executive Order of the Governor." N.J.S.A. 47:1A-1; see also N.J.S.A. 47:1A-9 (extending pre-OPRA exemptions provided on the same bases to any "public record or government record"). OPRA further exempts from its definition of government records certain "information . . . deemed to be confidential," including "security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software." N.J.S.A. 47:1A-1.1.
In response to our decision in Slaughter v. Government Records Council, 413 N.J. Super. 544 (App. Div. 2010), certif. denied, 208 N.J. 372 (2011), the Department of Law and Public Safety (LPS) promulgated N.J.A.C. 13:1E-3.2(a) (the Regulation), which designated certain records of the New Jersey State Police (NJSP) as confidential and exempt from disclosure under OPRA. 42 N.J.R. 2569(a) (Nov. 1, 2010). The Regulation provided in pertinent part that, as used in OPRA, "government records" did not include:
In Slaughter, supra, 413 N.J. Super. at 554-55, we held that LPS could not rely upon executive orders issued by Governor McGreevey that gave continued effect to the agency's proposed but unadopted regulations to deny production of an NJSP standard operating procedures (SOP) manual. We delayed the effective date of our decision so that LPS could consider adoption of regulations exempting the SOP from disclosure. Id. at 555.
1. Standard Operating Procedures and training materials;Governor Chris Christie, in turn, issued Executive Order No. 47 (EO47), which implemented the proposed Regulation pending final adoption. 42 N.J.R. 2830(a) (Dec. 6, 2010).
. . . .
3. Records which may reveal . . . an agency's surveillance, security or investigative techniques or procedures or undercover personnel;
. . . .
7. The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
[Ibid.]
On March 14, 2011, Robert Barush, on behalf of plaintiff New Jersey Second Amendment Society (the Society), served a request upon NJSP for "the most recent guide . . . prepared by [NJSP] Firearms Investigation Unit [(FIU)] to help ensure that firearm regulations . . . are enforced in a standardized manner by municipal police departments." Citing OPRA's exemption for "Security Measures or Surveillance Techniques," N.J.S.A. 47:1A-1, EO47, and the proposed Regulation, NJSP denied the request. On April 25, 2011, the Society filed a verified complaint and order to show cause seeking access to the records or compelling their production in redacted form pursuant to OPRA and the common law.
NJSP filed opposition, including the certification of Lieutenant David B. Schlueter of the FIU. Schlueter stated that the Firearms Applicant Investigation Guide (the Guide) was created expressly "for law enforcement" "to aid [NJSP] and municipal police departments in the investigation of firearms-related applications and in enforcing . . . firearms regulations in a uniform and standardized manner. . . . It was never intended for public release." Additionally, Schlueter certified that the Guide contained "security and investigative techniques and procedures," the release of which would be detrimental to public safety in that
it would reveal internal operating procedures that law enforcement officers undertake, and what they do not undertake, in reviewing firearms-related applications and conducting background investigations. The public release of this information would provide criminal-minded individuals with undue insight into the process that could be taken advantage of to unlawfully procure firearms.NJSP argued that the Guide was an SOP, exempt from disclosure under OPRA pursuant to the proposed Regulation and EO47. It also argued that the Society's interest in disclosure under the common law right to know was outweighed by public safety interests favoring non-disclosure.
We gather from the record that the Law Division judge requested a more specific certification from NJSP, and a supplemental certification was filed by Lieutenant Darryl L. Williams of the FIU. Williams stated that release of the Guide would be
detrimental to public safety because it would reveal internal security related and investigative operating procedures and techniques law enforcement officers undertake, and do not undertake, how they should be conducted, what databases or other informational sources are consulted, what standards may or may not apply, how to deal with personal references given by the applicant, what medical information may be pertinent and/or needs to be pursued through more intensive follow up or investigation, other background sources that must be contacted and what should be discussed in person with the applicant at the time
application is made, in reviewing firearms related applications and conducting background investigations.After reviewing the Guide in camera and considering oral argument, the judge denied the order to show cause and dismissed the Society's complaint by order dated December 2, 2011.
The proposed Regulation became effective December 5, 2011. 43 N.J.R. 3188(b). The Society filed its notice of appeal on January 4, 2012.
On January 19, 2012, the American Civil Liberties Union of New Jersey (ACLU) filed a notice of appeal contending that the Regulation violated OPRA and the New Jersey Constitution's separation of powers. We consolidated the appeals.
In 2013, citing both pending appeals, LPS proposed amendments to the Regulation. See 45 N.J.R. 2023(a) (Sept. 3, 2013). In its summary, LPS stated that paragraph a(1) of the Regulation "d[id] not clearly express the purpose for which it was promulgated - to serve the public interest in protecting the confidentiality of [LPS's] law enforcement and legal services functions." Ibid. The Regulation would be amended
to clarify that not all [LPS] standard operating procedures and training materials are considered confidential. [LPS] proposes to provide confidentiality for records, including standard operating procedures, manuals and training materials, which may reveal . . . an agency's investigative, surveillance, security, tactical, or
operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise an agency's ability to effectively conduct investigations. . . . This provision is to be narrowly construed to prevent disclosure of information that could risk jeopardizing safety or compromising the ability to conduct investigations. For example, the provision covers records, such as the standard operating procedure for investigation of firearms applications . . . .LPS proposed no amendment to N.J.A.C. 13:1E-3.2(a)(7) (section 7), and no specific comments were made regarding that subsection of the Regulation. Id. at 2024. However, addressing other proposed changes, LPS stated that the Regulation "[was] not intended to make confidential any record concerning a public employee, which is currently accessible to the public as set forth in N.J.S.A. 47:1A-10." Ibid.
[Id. at 2023-24.]
N.J.S.A. 47:1A-10 exempts "personnel or pension records" from disclosure under OPRA, but provides, among other things, that "an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record" and are presumptively subject to production upon request.
The Regulation now provides:
[T]he following records shall not be considered government records subject to public access pursuant to [OPRA]:
We granted the Society's motion to file supplemental briefs regarding the effect of the amended Regulation on the points raised on appeal and invited all parties to address the issue.. . . .
2. Records, including standard operating procedures, manuals, and training materials, that may reveal . . . an agency's surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise an agency's ability to effectively conduct investigations;
. . . .
7. The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
[N.J.A.C. 13:1E-3.2(a) (emphasis added).]
In its supplemental brief, the Society argues that its appeal is not moot since it was wrongfully denied access to the Guide, and the Regulation as amended does not justify the Guide's continued exemption from production. The Society also argues no remand to the Law Division is necessary.
NJSP agrees that the Society's appeal is not moot as a result of the amended Regulation. It argues, however, that the Guide "continues to be exempt under the new [R]egulation," specifically N.J.A.C. 13:1E-3.2(a)(2), and OPRA's exemption for "security measures or surveillance techniques which, if disclosed," would pose risks. N.J.S.A. 47:1A-1.1. Following oral argument, we requested and received the Guide for our in camera review.
ACLU and NJSP consented to the withdrawal of all points raised by ACLU's appeal, save its challenge to section 7. Over NJSP's objection, we subsequently granted ACLU's motion to supplement the record to include a certification from Harry B. Scheeler, Jr., a self-professed "government activist," detailing responses he received from NJSP to OPRA requests made in 2014 and attaching what was furnished by the agency. It suffices to say that the responses from NJSP contain substantial redactions, including the names of all NJSP personnel.
ACLU argues that section 7 is overly broad and is demonstrably being used improperly to deny public access to government records. NJSP argues that section 7 is consistent with OPRA's "mandate to withhold government records in the public's interest," and reflects "a permissible exercise of [LPS's] rulemaking authority."
Having now considered the arguments in light of the record and applicable legal standards, we reverse the Law Division's order that dismissed the Society's complaint and remand for further proceedings consistent with this opinion. We deny ACLU's challenge to section 7 of the Regulation. We address the Society's appeal first.
The Society's Appeal (A-2103-11)
The Law Division judge found that the Guide was part of an SOP, therefore exempt from OPRA pursuant to subsection a(1) of the Regulation as it then existed. He also considered whether the Society was entitled to access under the common law by applying the balancing test set forth in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). Relying in large part upon the certification of Lieutenant Williams, the judge concluded that, although some of the information in the Guide was public knowledge, i.e., contained in statutes or firearms application forms, disclosure of the "total document" was not warranted. The judge reasoned that the need to keep the Guide confidential outweighed the Society's interest, noting release of the Guide "would indicate the methodology that the State Police go[] through. . . . [I]t could compromise the investigative procedures that are used in determining whether a firearm should be issued or not." The judge further stated that the Society's "interest or need to get the entire document" was reduced since some of the information in the Guide was "already public."
As noted, when the Society's request for the Guide was made, the Regulation exempted from OPRA's definition of a government record all "Standard Operating Procedures and training materials." N.J.A.C. 13:1E-3.2(a)(1) (2010). We would agree that the Guide is part and parcel of NJSP's SOP regarding the investigation of firearms applications.
However, the Regulation now limits the scope of this exemption to SOPs "that may reveal . . . surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise an agency's ability to effectively conduct investigations." N.J.A.C. 13:1E-3.2(a)(2). The Law Division judge may have implicitly reached a determination that the Guide met this criteria. However, if he made such a determination, he did so in the context of the Society's common law right to access, which obligated him to balance consideration of certain factors.
As the Court recently reiterated, "[u]nlike OPRA, a person seeking public documents pursuant to the common law right of access must be balanced against the State's interest in preventing disclosure." O'Boyle v. Borough of Longport, 218 N.J. 168, 196 (2014) (citations and quotation marks omitted). "In other words, the party requesting documents must explain why he seeks access to the requested documents." Ibid. (emphasis added).
We therefore disagree with the Society and LPS, both of which argued a remand was not necessary. We believe that in light of the change to section a(1) of the Regulation, a remand is both appropriate and necessary so that the judge may consider, without respect to any showing of particularized need, whether production of the Guide "may reveal . . . surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise an agency's ability to effectively conduct investigations." N.J.A.C. 13:1E-3.2(a)(2).
We think a remand is required for another reason. We have conducted our own in camera review of the Guide, focused primarily on whether the judge correctly concluded that the entire Guide was exempt from production, even though he acknowledged much of its contents were in the public domain.
We understand that when the judge considered the issue, NJSP took the position and the judge agreed that, pursuant to the Regulation, all SOPs were not government records under OPRA. Now, however, the Regulation no longer exempts all SOPs; it only exempts SOPs to the extent disclosure adversely impacts the concerns raised in section a(2) of the Regulation.
Whenever a government agency asserts an exemption, OPRA clearly favors the production of redacted government records. N.J.S.A. 47:1A-5(g); see also Burnett v. Cnty. of Bergen, 198 N.J. 408, 437 (2009) (permitting redaction of social security numbers from requested land title records). Redaction is also favored when access is sought under the common law right to know. See, e.g., S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 488-89 (1991).
In sum, we reverse the order under review and remand the matter to the trial court, which shall conduct a hearing to consider whether section a(2) of the Regulation applies to exempt the Guide from OPRA's definition of a government record and whether the Guide should be produced in redacted form. We do not retain jurisdiction.
ACLU's Appeal (A-2396-11)
ACLU objected to section 7 when the Regulation was first proposed in 2010. See 43 N.J.R. 3188(b). Citing N.J.S.A. 47:1A-10, ACLU argued that the proposed rule "appears to exempt information that OPRA specifically mandates be made public," including "overtime information." Id. at 3190. Further, ACLU contended "there [was] no justification for a blanket exemption of the identities or duty assignments of law enforcement officers" because OPRA already permitted information to be withheld when "disclosure would jeopardize the safety of any person or investigation in progress," and the statute protected from disclosure the identity of "undercover officers and others whose identity must remain confidential." Ibid. Other commentators, including Barush, objected to the Regulation's use of the word "may" because it was "too broad and vague." Ibid.
In response, LPS noted that "[g]eneral overtime information is made available to the public, but individual information could be used to determine a particular assignment or investigative activity that would put lives at risk." Ibid. LPS declined to amend the proposed rule.
ACLU's comments to the proposed 2014 amendment were generally laudatory, see 46 N.J.R. 627(c) (Apr. 7, 2014); however, it continued the objection previously made regarding section 7. Id. at 628. ACLU asserted that section 7 "should be deleted altogether because withholding access to the duty assignments and overtime data of all officers [] cannot be justified when more limited exemptions that would serve the public interest are available and . . . are already in place." Ibid. LPS reiterated its previous response and declined any further action. Ibid.
In reviewing a challenge to properly adopted agency regulations, we "begin[] with a presumption that the regulations are both 'valid and reasonable.'" N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012) (quoting N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dept. of Agric, 196 N.J. 366, 385 (2008) (SPCA)). The party challenging the regulation bears the "burden of proving that the agency's action was 'arbitrary, capricious or unreasonable.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). That means
an appellate court generally will not reverse an agency action, including its action in promulgating regulations, unless: (1) the regulations at issue "violate[ ] the enabling act's express or implied legislative policies;" or (2) "there is [not] substantial evidence in the record to support the findings on which the agency based its action;" or (3) "in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors.""Courts afford an agency 'great deference' in reviewing its 'interpretation of statutes within its scope of authority and its adoption of rules implementing' the laws for which it is responsible." Schundler, supra, 211 N.J. at 549 (quoting SPCA, supra, 196 N.J. at 385).
[SPCA, supra, 196 N.J. at 385 (alterations in original) (emphasis added) (quoting In re Petition for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989)).]
"Although a reviewing court should not substitute its judgment for an agency's, courts must invalidate a regulation that is inconsistent with the statute it purports to interpret." Ibid. (quotation marks and citations omitted). "[A]ny regulation exceeding the agency's grant of authority from the Legislature is considered ultra vires, [but] such a finding 'is strongly disfavored, and is made only in exceptional circumstances.'" Gonzalez v. N.J. Prop. Liab. Ins. Guar. Ass'n, 412 N.J. Super. 406, 417 (App. Div. 2010) (quoting In re Route 206 at New Amwell Rd., 322 N.J. Super. 345, 352 (App. Div.), certif. denied, 162 N.J. 197 (1999)). Applying these well-accepted standards of review, we reject ACLU's challenge to section 7.
"OPRA itself makes plain that 'the public's right of access [is] not absolute.'" Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581, 588 (2011) (alteration in original) (quoting Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284 (2009)). Some government records are exempt from disclosure "for the protection of the public interest." N.J.S.A. 47:1A-1. Moreover, otherwise accessible government records are exempt from production if required by any "regulation promulgated under the authority of any . . . Executive Order." Ibid.
ACLU argues that section 7 does not advance a public interest and conflicts with accessibility to personnel records as provided by N.J.S.A. 47:1A-10. We disagree.
Taking the arguments in reverse order, the Court has said that N.J.S.A. 47:1A-10 reflects the Legislature's determination "that personnel records are, by definition, not classified as government records at all; any document that qualifies as a personnel record is therefore not subject to being disclosed notwithstanding the other provisions of the statute." Kovalcik, supra, 206 N.J. at 592. A "personnel record" is "subject to disclosure" "if, and only if, [it] . . . fits within one of the three exceptions to the general exemption for personnel records." Ibid. As noted, one such exception provides that "an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record." N.J.S.A. 47:1A-10.
We have no doubt that a request for the duty assignments of law enforcement officers would fall squarely within OPRA's general exemption for personnel records. See, e.g., Kovalcik, supra, 206 N.J. at 593 (holding that detective's record of pre- employment training and education was a personnel record under OPRA); N. Jersey Media Grp. v. Bergen Cnty. Prosecutor's Office, 405 N.J. Super. 386, 389 (App. Div. 2009) (concluding that requests by employees of prosecutor's office for approval of outside employment were personnel records for purposes of OPRA). To the extent that section 7 permits non-disclosure of duty assignments, there is no inconsistency between the Regulation and the statute. In other words, section 7 in no way restricts a requestor's ability to obtain a law enforcement officer's "name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received." N.J.S.A. 47:1A-10. Such information would likely indicate the amount of overtime compensation the officer received.
Moreover, OPRA provides that "[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, . . . and public employee salary and overtime information." N.J.S.A. 47:1A-5(e) (emphasis added). Section 7 would not exempt overtime information unless it might reveal a particular officer's duty assignment. Although the issue is not before us, we caution NJSP against the use of section 7 to improperly deny public access to overtime information because that would clearly subvert the express language of OPRA.
We also agree that exempting the duty assignments of law enforcement officers from disclosure is consistent with the officers' protection and that of the public. N.J.S.A. 47:1A-1. We have already recognized "[t]he sad fact of the twenty-first century [] that many law enforcement employees are at risk by virtue of their jobs." N. Jersey Media, supra, 405 N.J. Super. at 391. The potential "dangers inherent" in requiring the NJSP to disclose the actual duty assignments of State troopers, e.g., who and how many provide security to public leaders or public sites on a given day, are obvious. Ibid.
Lest our opinion in this regard be misconstrued, we hasten to add that the issue before us is limited to ACLU's facial challenge to section 7, which we reject. ACLU argues that the documents supplied by Scheeler's certification demonstrate NJSP has applied section 7 in an overly-broad fashion, redacting basic information such as a trooper's name or badge number in records otherwise required to be disclosed.
We do not reach the merits of that argument today, preferring instead to consider whether section 7 permits such wholesale redaction of information or, stated differently, whether NJSP's application of section 7 to a request for a government record was arbitrary, capricious and unreasonable in the context of a specific request for specific government records. See, e.g., In re J.S., 431 N.J. Super. 321, 330 (App. Div.) (citation omitted) (describing standard of review of agency's application of its regulations) certif. denied, 216 N.J. 365 (2013).
The record reveals that Scheeler has already filed complaints with the Government Records Council regarding some of the redacted records that were supplied.
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We deny ACLU's challenge to the regulation. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION