ASBURY PARK PRESS v. OCEAN COUNTY

SERPENTELLI, A.J.S.C.

In this Action in Lieu of Prerogative Writs, the Asbury Park Press (hereinafter "Press" or "plaintiff") seeks to compel the Ocean County Prosecutor's Office and Prosecutor Thomas Kelaher (hereinafter, collectively "Prosecutor" or "defendant") to release a copy of a 911 tape and transcript relating to a double homicide which occurred in Dover Township on May 7, 2004. On that date, Josephine O'Brien and Anthony Napolean were shot in their home and during the incident, Napolean called 911 for emergency assistance. Both O'Brien and Napolean subsequently died from the shootings. O'Brien's son, Peter O'Brien (hereinafter "criminal defendant") is charged with the murders.

On May 14, 2004, the Press requested, pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (hereinafter "OPRA" or "Act"), the tape and transcript of the 911 call. The Prosecutor denied the request on May 24, 2004. On June 16, 2004, the Press filed an Order to Show Cause seeking a judgment directing the Prosecutor to release the tape and transcript. A hearing was held on July 2, 2004.

In denying the request, the Prosecutor listed several reasons for withholding the tape and transcript. He stated the release would:

The Prosecutor's response said that "[the] request is also denied because the [criminal] defendant `opposes the release of the 911 tape in any form to the Asbury Park Press.'" The Prosecutor was quoting a letter from Deputy Public Defender Francisco Gonzalez, the attorney for the criminal defendant.

The Press argues that pursuant to OPRA the defendant is obligated to release the 911 tape and transcript since they are both a "government record" as defined in N.J.S.A. 47:1A-1.1 and because there is no exemption in OPRA protecting such information. The plaintiff further contends that the reasons for not releasing the tape and transcript are without merit. First, the Press asserts that the "privacy provision" of N.J.S.A 47:1A-1 is not substantive law since it is contained within the first section of OPRA, which is entitled "Legislative findings." In the plaintiff's view, that section constitutes a preamble or preface having no directory or binding force of law. A portion of that section states, "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy...." N.J.S.A. 47:1A-1. In essence, the Press argues that the first section of the Act contains precatory language merely stating the anticipated goals to be achieved by the mandatory sections that follow it. As such, it does not limit the rights of public access as contained in the balance of the Act. Second, the Press argues that the Victim's Rights Amendment and Crime Victim's Bill of Rights do not apply to this situation because both enactments seek to insure the victim's ability to participate in criminal proceedings and be treated with compassion and respect by the criminal justice system. They were not intended to be a limitation or implied exemption to an OPRA request.

The New Jersey Crime Victims' Law Center and the New Jersey Victims of Crime Compensation Board were granted leave to appear as amici curiae and submit briefs. Both parties reinforce the Prosecutor's position that release of the tape and transcript would violate the New Jersey Constitution under the Victim's Rights Amendment and the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38.

Serrano v. South Brunswick Tp., 358 N.J.Super. 352, 817 A.2d 1004 (App.Div. 2003), is the leading case discussing the application of OPRA to 911 tapes. However, that opinion specifically makes clear that the decision was not meant to be applied to all 911 tape cases. The court prefaces its analysis with this paragraph:

The facts of Serrano are quite distinct from the present case. In Serrano, the defendant, Michael Janicki, placed a 911 call at 11:15 p.m., three hours before he allegedly killed his father. At 2:15 a.m., Janicki's mother called 911, as a result of which police officers arrived at the scene and began a criminal investigation. A reporter made a request to South Brunswick Township for the release of the tape of the first 911 call, in addition to police reports and EMS records, all of which were denied. The case reached the Appellate Division after the prosecutor's office filed an appeal from a decision of the Government Records Council (hereinafter "GRC") directing the prosecutor to allow access to the tape. The Appellate Division affirmed the GRC's decision. Id. at 356, 817 A.2d at 1006.

The court focused on the issue of whether this 911 tape fit into the "records of investigation in progress" exemption, N.J.S.A. 47A:1-3. Id. at 366, 817 A.2d at 1012. Its analysis of that provision is not relevant to this case since the defendant has not asserted that exemption. Interestingly enough, at the end of its discussion regarding "records of investigation in progress," the Appellate Division felt compelled to mention another portion of OPRA not referenced in the briefs in that case or in the GRC's final decision. The court discussed at length the "expectation of privacy" provision of N.J.S.A. 47:1A-1. The Serrano court stated:

Judge Coburn in his concurring opinion explored the privacy issue in greater depth. He emphasized that "in approving publication of the tape here, where there happened to be no objection from the caller, the court is not concluding that all 911 tapes are open to the public under OPRA." Id. at 371, 817 A.2d at 1016 Coburn, J.A.D., concurring). He asserted that the OPRA privacy statement is "patterned" after the Kentucky right-to-know statute, which was considered in Bowling v. Brandenburg, 37 S.W.3d 785 (Ky.Ct.App.2000). That case held that 911 calls were exempt from disclosure under Kentucky's privacy provision. Judge Coburn opined that there is an expectation of privacy in 911 calls and therefore the tapes should be considered confidential under the statute. He said, "[b]ecause of our Legislature's adoption of the language borrowed in large part from the Kentucky statute, it appears to me that both the contents of a 911 call and the caller's identity should be treated by the recipient as confidential under N.J.S.A. 47:1A-1." Serrano, supra, 358 N.J.Super. at 373, 817 A.2d at 1017 (Coburn, J.A.D., concurring). Judge Coburn acknowledged that the statutory restriction would not preclude 911 tapes from being released under the common law right to know.

However, neither the majority nor concurring opinions in Serrano focused on the fact that the Act's only mention of an expectation of privacy was contained in the "Legislative findings" unlike, as will be discussed, the laws of other states, including Kentucky, which contain explicit mandates concerning privacy expressed as exemptions from the disclosure requirements.

The issue was again alluded to but not decided in Courier News v. Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 817 A.2d 1017 (App.Div.2003). In that case, a 911 call was made concerning a death that had occurred in the home of the subsequently charged homeowner. The law enforcement authorities immediately concluded that the death was a homicide and seized the 911 tape as evidence in the criminal investigation. The Courier News formally requested a copy of the tape. The court ordered that the tape be released, finding that it was a government record which did not constitute newly discovered evidence and that release did not create an extreme risk of tainting the jury pool. In dicta, however, the court commented on the issue in controversy before this court.

Courts of other jurisdictions have confronted the privacy issue more directly. In New York Times Co. v. City of New York Fire Dep't, 3 A.D.3d 340, 770 N.Y.S.2d 324 (2004), the New York Times requested, among other things, the tapes of the 911 calls made to the fire departments concerning the September 11, 2001, attacks on the World Trade Center. The New York Appellate Division held that though the words of the fire department's personnel in the 911 tapes did not fall within the personal privacy exemption of New York's Freedom of Information Law, the words of the 911 callers did. The court stated:

New York, however, has a specific personal privacy exemption contained in its Freedom of Information Law. N.Y. Pub. Off. Law § 87(2)(b). The section requires that all records be made available for public inspection and copying, except if disclosure "would constitute an unwarranted invasion of personal privacy...." Ibid.

In Arizona, the state's Public Records Act creates a presumption of access to all public records. Ariz.Rev.Stat. § 39-121. There is no personal privacy exemption in the act1, but the Arizona courts created an exemption by permitting a denial of access when considerations of confidentiality, privacy or best interests of the state outweighs the policy of public disclosure. A.H. Belo Corp. v. Mesa Police Dep't, 202 Ariz. 184, 42 P.3d 615, 617 (2002). In A.H. Belo, a babysitter called 911 to report that the baby she was watching fell from his crib. The babysitter was later indicted on charges of child abuse. A television station sent a request for a copy of the transcript and tape of the 911 call. The transcript was provided, but the Mesa Police Department refused to release the tape. The court held that the police department had a substantial basis — the family's privacy interest — in not disclosing the tape.

In Ohio, the state's Public Records Act, Ohio Rev.Code Ann. §§ 149.43 to .44, does not have a personal privacy exemption, but does list approximately twenty-four items that are not considered public records. Ohio Rev.Code Ann. § 149.43. The state Supreme Court has held that 911 tapes do not fit into any exemption and should be released, regardless of the tape's content. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334, 337-38 (1996). In a concurring opinion, Justice Pfeifer stated he agreed with the majority, but disagreed with the law.

Michigan's Freedom of Information Act does have a personal privacy exemption, but the courts have not interpreted that provision as it relates to 911 calls. Mich. Comp. Laws § 15.243(1)(a). In Payne v. Grand Rapids Police Chief, 178 Mich.App. 193, 443 N.W.2d 481 (1989), a 911 tape was held to be a public record not protected by any exemption. Id. at 485. However, in that case, it was the caller's parents who requested the tape because they believed foul play was involved in the death of their daughter when the police first ruled it as a suicide and thereafter determined it accidental. Id. at 482. The privacy exemption was never claimed because it was the victim's parents who wanted the tape.

Kentucky's Open Records Act, Ky.Rev.Stat. Ann. §§ 61.870 to .884, also has a personal privacy exemption for any disclosure which would constitute "a clearly unwarranted invasion of personal privacy." Ky.Rev.Stat. Ann. § 61.878(1)(a). In Bowling v. Brandenburg, 37 S.W.3d 785 (Ky.Ct.App.2001), the Kentucky appellate court ruled that a 911 tape should not be released because the right to privacy of a person in seeking police assistance outweighed substantially the public's right to know. Id. at 787-88. In that case, the plaintiff requested the tape of a 911 call alleging that the plaintiff had threatened to kill his wife, the caller, and other family members. Id. at 786. The plaintiff claimed he wanted the tape to verify the identity of the caller, alleged to be his grandson, and to be sure that the police had not misunderstood the reported threats that had been made. Id. at 788. In denying the request, the court emphasized the need to protect the identity of 911 callers because allowing a caller's identity to become public might discourage individuals from calling 911 to assist others out of fear of "retaliation, harassment, or public ridicule." Ibid. It also found that the call "resulted in only a minimal intrusion" upon the plaintiff. Ibid.

It should be noted that in most of the cases decided in other jurisdictions the statutory law contained an express provision relating to privacy that was unmistakably intended as a limitation on or exemption from the right of access. The statutes of other jurisdictions contain similar provisions. Connecticut General Statute 1-210(b)(2) states, "[n]othing in the Freedom of Information Act shall be construed to require disclosure of: ... (2) [p]ersonal or medical files and similar files the disclosure of which would constitute an invasion of privacy." To be excluded under the exemption, the person seeking to withhold release of the public record must demonstrate that the record does not pertain to a matter of legitimate public concern and that it is highly offensive to a reasonable person. First Select Man of Ridgefield Tp. v. Freedom of Info. Comm'n, 60 Conn.App. 64, 758 A.2d 429, cert. denied, 255 Conn. 922, 763 A.2d 1041 (2000), See also Ark.Code. Ann. § 25-19-105(b)(12) and 5 Ill. Comp. Stat. 140/7(1)(b).

As noted, the privacy provisions of New Jersey's OPRA are contained in N.J.S.A. 47:1A-1. That section reads:

As previously discussed, the plaintiff contends that this section is simply a preamble to what is to follow and that nothing in it has the force of law. In support of that argument, the Press points to the title "Legislative findings" as well as the opening sentence that declares the "public policy" issues addressed by the Act. Further, the plaintiff's brief argues that, with the exception of the language relating to the expectation of privacy as to personal information, every other aspect of Section 1 is specifically embodied in other sections that are the operative provisions of the Act.

The Press asserts the interests identified in Section 1 as goals are the right of prompt access, maintaining in place means to exempt records outside of the Act that existed under prior law, that the common law right to know principles be preserved, and that the citizens' right to privacy be protected. The plaintiff notes that subsequent sections insure prompt access (N.J.S.A. 47:1A-5-6), preserve exemptions of certain records without legislation (N.J.S.A. 47:1A-9), and maintain the common law right of access (N.J.S.A. 47:1A-8). However, the argument continues, nowhere in the Act is there any substantive provision to protect personal information against public access. Furthermore, the procedural sections of the law do not provide for any balancing of the private and public interests as would be required if the statement contained within Section 1 concerning a citizen's expectation of privacy was to be given substantive value.

The defendant's brief does not respond to this analysis. Rather, the Prosecutor relies principally on the language of Serrano and Courier quoted earlier and specifically notes that Serrano refers to N.J.S.A. 47:1A-1 as a "mandate." Serrano, supra, 358 N.J.Super. at 369, 817 A.2d at 1015.

Thus, the central issue in this case turns on the court deciphering the legislative intent. That is always a perilous process but some guideposts can be found. As noted, the plaintiff claims that Section 1 of OPRA is a preamble not having any substantive effect. The Press points to the title of Section 1, "Legislative findings" and to the statement of policy contained therein as support for its claim. Generally, it is held that the preamble of a legislative act is not part of the law, and it cannot be used to discern legislative intent if no doubt exists concerning the statute's meaning. 1A Sutherland, Statutory Construction § 20:3 (6th ed. 2002). However, resolution of that issue cannot be determined solely on the basis of labels.

First, it is a well-established canon of statutory construction that "the title of an act cannot support a construction beyond the plain meaning of the body of the statute itself." Terracciona v. Magee, 53 N.J.Super. 557, 567, 148 A.2d 68, 73 (Law Div.1959). The same principle applies to the title of a section of an act. City of Atlantic City v. County of Atlantic, 193 N.J.Super. 583, 586, 475 A.2d 616, 618 (App.Div.1984). Frequently, the title, "like the inscription on a tombstone, serves only to indicate what lies below." State v. Greene, 33 N.J.Super. 497, 500, 111 A.2d 65, 67 (App.Div.1955). Second, the preamble or policy portion of a statute is normally a prefatory explanation or statement preceding the enactment clause. It often contains the word "whereas," and sets forth the reason or occasion for making the law or explains in general terms the policy of the act. PRB Enterprises, Inc. v. South Brunswick Planning Board, 105 N.J. 1, 5, 518 A.2d 1099, 1101 (1987); 1A Sutherland, Statutory Construction, supra, § 20:3 and § 20:12. Here, Section 1 does not contain "whereas" clauses or similar words and it follows, not precedes, the enactment clause. While N.J.S.A. 47:1A-1 does contain statements of policy, it also sets forth mandates all of which, with the exception of the privacy language, are expressed as separate substantive provisions in other sections of the statute. Third, it should also be noted that our Supreme Court has drawn a distinction between statutory language that is intended as a preamble and provisions intended as a statement of purpose. The Court in PRB said:

Legal formalisms should not be permitted to defeat substance, for it is the actual intent of the Legislature that is the central concern as opposed to the manner in which it has expressed itself. Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 216, 850 A.2d 456, 466-67 (2004); Alexander v. New Jersey Power & Light Co., 21 N.J. 373 378-79, 122 A.2d 339, 342-43 (1956). Chief Justice Weintraub has provided the following guidance for those instances in which a literal reading of a body of law appears to contravene clear legislative intent.

Of course, legislative intent and purpose when clearly expressed must be carried out without reference to rules of construction. In re Passaic County Utilities Auth., 164 N.J. 270, 299, 753 A.2d 661, 678 (2000). The fact is that legislative intent is, in reality, the sum of individual ideas and opinions of all members of the legislative body. It would be virtually impossible to discover what each legislator thought about every aspect of any bill. Sutherland notes that various methods have been used to accomplish that goal:

The court is also enjoined to avoid an untenable outcome in its effort to discover the lawgivers' intent. When one of several options would produce an unreasonable or absurd result, it should be rejected in favor of another that is rational and sensible. State v. Gill, 47 N.J. 441, 444, 221 A.2d 521, 523 (1966) (citing Robson v. Rodriquez, 26 N.J. 517, 528, 141 A.2d 1, 7 (1958)).

With these principles in mind, the court turns to the statute before it. The bill that became OPRA does not contain a comprehensive legislative statement. In an earlier iteration of Senate Bill No. 2003, which was subsequently replaced by Assembly Bill No. 1309 (which in turn ultimately became Chapter 404 of the Laws of 2001), the Senate statement observed:

The Senate statement's recognition of privacy issues embodied the concern repeatedly expressed at the March 9, 2000, Senate Judiciary Committee hearing regarding a predecessor bill to the Assembly Bill finally passed. A review of the record of the Senate hearing on the bill that led to the passage of the Act does provide explicit evidence of the legislative concern regarding privacy issues. Some excerpts demonstrate that conclusion:

In addition to the clear awareness of the privacy issue as reflected by these excerpts, it can be presumed that the legislators were well aware of the provisions of N.J. Const. art. I, ¶ 22, states:

Additionally, even before the passage of the constitutional amendment, the Legislature had sought to provide victim protection by the enactment of the Crime Victim's Bill of Rights. N.J.S.A. 52:4B-34 to -49.

Finally, the record before this court reveals that New Jersey Crime Victims' Law Center, an amicus in this action, participated in the legislative process leading to the passage of OPRA, by seeking to impress on the legislators the need to guarantee that the rights of victims would be adequately guarded in any bill that was passed. In short, it is beyond doubt that the lawmakers were well aware of the need to deal with the myriad of privacy issues implicated by an unqualified disclosure of anything that fits the definition of a government record.

Clearly, the court must always maintain a sharp focus on the purpose of OPRA and resist attempts to limit its scope, absent a clear showing that one of its exemptions or exceptions incorporated in the statute by reference is applicable to the requested disclosure. The salutary goal, simply put, is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. N.J.S.A. 47:1A-1 to -13; Nero v. Hyland, 76 N.J. 213, 221, 386 A.2d 846, 850-51 (1978). Exposure of records to the light of public scrutiny may perhaps cause discomfort to some. However, OPRA is founded on the premise that society as a whole suffers far more if governmental bodies are permitted to operate in secrecy. As Justice William O. Douglas has said: "The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to." Envtl. Prot. Agency v. Mink, 410 U.S. 73, 105, 93 S.Ct. 827, 845, 35 L.Ed.2d 119, 142 (1973) (Douglas, J., dissenting) (quoting Henry Steele Commager, The New York Review of Books, Oct. 5, 1972, at 7).

However, having recognized the overarching value and objective of providing broad access to government records, the court must ask how the release of the dying words of Anthony Napolean in any way contributes to the purpose of OPRA or provides even a scintilla of insight into the functioning of government. Admittedly, the general rule is that one seeking to obtain government records need not explain why they are requested if there is a clear right to obtain them under the statute. Williams v. Bd. of Educ. of Atlantic City Public Schools, 329 N.J.Super. 308, 314, 747 A.2d 809, 812 (App.Div.), certif. denied, 165 N.J. 488, 758 A.2d 648 (2000). Yet, that principle becomes less absolute if there is some protection of a privacy right afforded in the Act. Arguably, the plaintiff may find information of public worth in the manner in which the victim's call was handled. Beyond that, how can the release of the victim's description of his distress and perhaps his last words contribute to the goals of a more informed citizenry or elimination of the evil of secrecy?

The court has had the unpleasant task of hearing the 911 tape in camera, and of reading the transcript of the tape at the same time. It was a chilling, wrenching, lingering experience even for one not related to the victim. The content of the tape would, in the court's judgment, offend and disturb any person of normal sensibilities. It is impossible to imagine what the impact would be on the victim's family and loved ones. It is equally inconceivable that the Legislature would have ever intended that OPRA would have been used as the instrument to put those words, either as spoken or transcribed, in the public domain. Therefore, it is beyond doubt that the victims' survivors would reasonably expect that they would never have to share their loved ones' words with an inquisitive media or curious public.

The extensive discussion of privacy concerns in the legislative hearing, the recognition of privacy issues in the Senate statement to an earlier bill, the adoption of OPRA with full recognition of both the constitutional amendment and statutory protection of victims' rights, the legislators' knowledge that those concerns had always been addressed either by express exemptions or a common law balancing test under the law existing prior to the adoption of OPRA, and the very words chosen in Section 1 of OPRA, convince the court that the Legislature intended to provide protection against disclosure in those instances in which a person had a reasonable expectation of privacy. The fact that the legislation was inarticulately crafted cannot be used as a basis to circumvent the obvious legislative intent — so obvious that our courts in Serrano and Courier News readily assumed the truth of that proposition.

Therefore, the court finds that the request for the 911 tape was properly denied. As to the transcript, the plaintiff could argue that no violence would be done to the victims' rights by releasing a redacted version eliminating the words of the victim. If that was done, the plaintiff could, at least, assess how the call was handled. As noted, in New York Times Co. v. City of New York Fire Dep't, supra, 3 A.D.3d 340, 770 N.Y.S.2d 324, that procedure was utilized. The decision there gave no indication of the substance of the dispatcher's comments. However, as discussed earlier, this court has read the transcript of the tape. In many instances the 911 dispatcher or the police department personnel repeat either verbatim or in substance the words of the victim. Other comments they make would strongly suggest what the victim is saying or reveal his distress. Therefore, release of even a redacted transcript would intrude on the reasonable expectation of privacy that this court has found is protected by OPRA. Thus, the request to release the transcript must also be denied.