The opinion of the court was delivered by YANNOTTI, P.J.A.D.
In May 2017, Gannett Satellite Information Network, LLC (Gannett), an entity that publishes the
For the following reasons, we conclude the trial court correctly found that Gannett was not entitled to access to Seidle's IA file pursuant to OPRA, but disclosure was required under the common law right of access. We also conclude the trial court erred in awarding of attorney's fees to Gannett. Therefore, we affirm in part and reverse in part on the appeal, and affirm on the cross appeal.
On June 16, 2015, Seidle shot and killed his ex-wife Tamara near a heavily populated area of Asbury Park, using his service revolver, in the presence of their seven-year-old daughter. On March 10, 2016, Seidle pled guilty to aggravated manslaughter. He was later sentenced to a thirty-year prison term.
The Monmouth County Prosecutor's Office (MCPO) investigated the response of law enforcement to Tamara's death and on June 30, 2016, issued a report, which detailed its findings. In the report, the MCPO recounted the Seidles' history of domestic violence.
The MCPO described in detail seven specific incidents of domestic violence reported to the Neptune Township Police Department (NTPD) involving Seidle and Tamara that occurred between 1994 and 2015. The MCPO also described an additional domestic violence incident was reported to the Tinton Falls Police Department in 2012.
The MCPO's report also noted that seven calls had been made to the NTPD concerning the Seidles' child custody issues. In addition, Seidle or Tamara made seven "traditional" calls to the NTPD but they "did not touch in any way on their relationship...."
The MCPO stated that its investigation had "disclosed a critical flaw in the domestic violence policies and procedures that currently exist statewide." It found "domestic violence incidents" that do not result in the "filing of criminal charges or a temporary restraining order may still call into question the fitness-for-duty of a police officer."
The MCPO added that, "a police officer who has numerous [IA] complaints — either due to internal departmental policy violations or from complaints by citizens — raises a red flag which may warrant a fitness-for-duty evaluation by the agency." To address these concerns, the MCPO implemented an Early Warning System for all law enforcement agencies in Monmouth County.
By letter dated May 24, 2017, Gannett submitted a request to the Township for access to Seidle's IA file pursuant to OPRA and the common law. The Township denied the request. The Township provided Gannett a
On July 19, 2017, Gannett filed a verified complaint claiming that the Township's failure to provide it with access to Seidle's IA file was a violation of OPRA and the common law. The trial court entered an order requiring the Township to show cause why the relief sought in the complaint
The judge heard oral argument on the motion and ordered the Township to submit the records to the court for an in-camera review. By letter dated December 8, 2017, the attorney for the Township informed the court that Seidle opposed public disclosure of his IA file. The attorney stated that Seidle believed disclosure of the file would be an invasion of his privacy and prejudice him in the wrongful death action his children and Tamara's estate had brought against him.
Gannett objected to the court's consideration of the December 8, 2017 letter, and the judge conducted a telephone conference, in which she referred to the MCPO's report and an article that appeared in the
On August 1, 2018, the judge filed a written opinion on Gannett's complaint. The judge noted that the file contained several types of documents, including IA investigative reports, citizen complaints, police and incident reports, fitness-for-duty evaluations, disciplinary notices and decisions, domestic violence records, and newspaper articles. The documents were dated from March 27, 1994, through May 10, 2016.
The judge stated that all but six of the twenty-eight incidents reflected in the Township's
The judge determined that the records were exempt from disclosure under OPRA. The judge noted that the Attorney General's Internal Affairs Policy and Procedures (IAPP) governed IA investigations by local law enforcement agencies. The IAPP, which was first issued in 1991 and thereafter amended, provides that records pertaining to such investigations are confidential.
The judge noted that N.J.S.A. 40A:14-181 required all law enforcement agencies to adopt and implement guidelines consistent with the IAPP, thereby bestowing "the imprimatur of statutory authority on the IAPP." The judge concluded that "because the confidentiality provisions of the IAPP had been codified by statute," the records are exempt from disclosure under OPRA pursuant to N.J.S.A. 47:1A-9, which provides that OPRA shall not abrogate any grant of confidentiality otherwise established by statute.
The judge then considered whether Gannett was entitled to access to the entire IA file under the common law right of access to public records and conducted the balancing required by
The judge recognized that there were important public policy considerations favoring confidentiality of the records but found that the unique circumstances of the case weighed in favor of disclosure. Those facts included the "widespread media attention"
The judge noted that "Seidle voluntarily provided information from his [IA] file to the [Asbury Park Press] and waived any claim that the information is private." Furthermore, "[t]here [was] nothing about the nature of the [IA] incidents or the manner in which they were reported, that would lead [the] court to conclude that disclosure of part or all of the records would deter citizens or fellow officers from reporting police misconduct." The judge stated that the potential harm from disclosure was minimal because much of the information was already public and that any harm from disclosure could be mitigated by redactions that would protect the identity of other officers, complainants, or witnesses.
The judge further found that the public was "entitled to answers regarding how an officer with twenty-one ... police involved reports of conflict with his wife, could remain on the police force, armed with a weapon that was used to murder his ex-wife." The judge stated that the public had "a right to inquire whether existing policies were in place to adequately address officers at risk or whether recent reforms or policies [had] gone far enough." The judge found that because Seidle had already pleaded guilty and would "remain in prison for decades, disclosure [would] not interfere with any investigative or disciplinary proceedings."
The judge also considered whether Gannett was entitled to the award of attorney's fees. The judge found that were it not for the court's decision, the records would not be disclosed. The judge decided, however, that because Gannett did not prevail on the OPRA claim, only a partial fee award was appropriate. The judge stated that the parties should confer and attempt to resolve the reasonable attorney's fees that should be awarded to Gannett.
The judge memorialized her decision in an order filed on August 1, 2018. Thereafter, the court granted motions by the Monmouth County Chiefs of Police Association (MCCPA) and the New Jersey State Association of Chiefs of Police (NJSACP) for leave to participate in the case as amici curiae.
On August 16, 2018, the Township filed a motion for reconsideration of the August 1, 2018 order. The judge heard oral argument and on May 13, 2019, filed an order and written opinion denying the Township's motion for reconsideration and awarding Gannett $85,665.13 in attorney's fees and $472.99 in costs. The judge stayed her orders pending appeal. The Township appeals and Gannett cross appeals from the court's August 1, 2018, and August 16, 2018, orders.
We granted motions for leave to appear as amici curiae by: New Jersey State League of Municipalities, New Jersey Institute of Local Government Attorneys and New Jersey School Boards Association (collectively, the NJLM); the New Jersey State Policeman's Benevolent Association (NJSPBA); the Attorney General of New Jersey; and American Civil Liberties Union of New Jersey, Association of Criminal Defense Lawyers of New Jersey, Libertarians for Transparent Government, Latino Leadership Alliance of New Jersey and New Jersey Foundation for Open Government (collectively, the ACLU-NJ). The MCCPA and NJSACP also have participated in the appeal as amici curiae.
On November 13, 2019, the Attorney General informed the court that, pursuant to his authority under the IAPP, he intended to release Seidle's IA file, with
On appeal, the Township argues: (1) the trial court misapplied the common law balancing test by ruling that the public was entitled to Seidle's IA file; (2) the court erred by awarding Gannett counsel fees under the common law; and (3) the hourly fees of Gannett's attorneys should be reduced since they are "out-of-step" with fees commonly awarded in matters involving requests for public records.
In responding to the Township's appeal and in support of its cross appeal, Gannett argues: (1) the trial court correctly ruled that it is entitled to the requested records under the common law; (2) it is entitled to an award of attorney's fees under the common law; (3) the court did not abuse its discretion in the amount of attorney's fees awarded; (4) the court did not err by denying the Township's motion for reconsideration; and (5) it was entitled to the records under OPRA.
The Attorney General argues: (1) law enforcement IA records are not accessible under OPRA and can only be disclosed, if at all, pursuant to court order; and (2) attorney's fees are not available in actions brought under the common law right of access. The Attorney General does not take a position on whether the trial court erred in ordering release of Seidle's IA file under the common law.
The MCCPA contends: (1) the trial court did not consider relevant factors in concluding that Gannett has a common law right of access to Seidle's IA records; and (2) the MCPO's internal review did not constitute a definitive executive act authorizing disclosure of all IA reports related to Seidle.
In addition, the NJLM argues: (1) there is no authority for the award of attorney's fees under the common law right of access to public records; (2) a custodian of records cannot be expected to assume the function of weighing the factors relevant under the common law in determining whether to release an IA file especially where there is no right of access to these records under OPRA; (3) the court erred in balancing Gannett's interest in access against the Township's interest in confidentiality; and (4) the counsel fees awarded were neither reasonable nor appropriate.
The NJSACP contends: (1) the trial court failed to consider the State-wide ramifications of publicly releasing IA documents to a newspaper and the effect such disclosure will have on future IA investigations; and (2) the trial court failed to properly consider the Attorney General's IAPP as part of the balancing test for the common law right of access to public records.
Furthermore, the NJSPBA contends: (1) the trial court correctly denied Gannett access to the requested documents under OPRA; and (2) the court erred by granting Gannett access to the documents under the common law.
Finally, the ACLU-NJ argues: (1) public access to IA files greatly benefits the public and police officers; (2) the Attorney General's IAPP does not exempt documents from access under OPRA; (3) the trial court correctly concluded that access to Seidle's IA file should be granted under the common law; and (4) the trial court correctly determined that Gannett was entitled to attorney's fees under the common law.
We first consider whether the issues raised on the appeal and cross appeal are moot in light of the Attorney General's release of Seidle's IA file. We conclude that the issues raised are not moot.
Mootness is a threshold "determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm."
In this case, the trial court awarded Gannett attorney's fees because it prevailed on its claim under the common law right of access. The Attorney General's release of Seidle's IA file does not affect the order awarding Gannett attorney's fees. Moreover, the issue of whether Gannett is entitled to access to the records under the common law is not moot because that finding was the basis for the award of attorney's fees. In addition, the issue of whether Gannett is entitled to access to the records under OPRA is not moot because Gannett contends it is entitled to the award of counsel fees under either OPRA or the common law. Therefore, we will address the issues raised in the appeal and cross appeal.
Gannett argues that the trial court erred by finding it was not entitled to access to the IA file under OPRA. "The trial court's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review."
OPRA generally provides that the public is entitled to access to certain government records. N.J.S.A. 47:1A-1. However, OPRA expressly provides that "personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access" except in certain limited circumstances. N.J.S.A. 47:1A-10. One of the limited exceptions is when such records are "required to be disclosed by another law."
OPRA also provides that the provisions of N.J.S.A. 47:1A-5, which governs access to government records, "shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to ... any other statute." N.J.S.A. 47:1A-9(a). In addition, OPRA states that nothing in N.J.S.A. 47:1A-5 shall
The Court held, however, that the board could not "exercise its investigatory powers when a concurrent investigation [was being] conducted by the Newark Police Department's [IA] unit."
In reaching that decision, the Court considered the IAPP. The Court noted that the Attorney General was authorized under N.J.S.A. 52:17B-4(d), "to adopt rules and regulations for the efficiency of the Department of Law and Public Safety's work and administration" and that he exercised that authority in 1991 when issuing the IAPP.
The Court found that "[s]ection 181 effectively made the ... IAPP required policy for all municipal law enforcement agencies in New Jersey."
The Court further found that N.J.S.A. 40A:14-181 and N.J.S.A. 40A:14-118, which governs the creation of a police force and the powers and duties of the police chief, "together, create an IA function that is, in the aspects discussed, rigidly regulated."
The Court stated that an investigation by a municipal civilian review board during an ongoing IA investigation would "interfere with the intended purpose of section 181's and the IAPP's requirements."
After the officer cooperated in an investigation that led to charges against four other officers, he was allowed to retire in good standing pursuant to a settlement agreement and the disciplinary charges against him were dismissed.
Relying on the language in N.J.S.A. 47:1A-10, the panel noted that "a public employee's disciplinary records are personnel records not subject to public access under [OPRA]."
Thereafter, a panel of this court rendered its decision in
Among other contentions, the appellant law enforcement agencies argued that the Attorney General did not have authority to issue the Directives because they were in conflict with N.J.S.A. 47:1A-10, the exemption under OPRA for personnel records.
The court noted that "this [was] not an OPRA case."
The court also recognized that the IAPP provides that "[p]ersonnel records are separate and distinct from [IA] investigation records, and [IA] investigative reports shall never be placed in personnel records, nor shall personnel records be comingled with [IA] files."
In addition, the court considered whether the Attorney General had the authority to direct that the information in the IA files be made public.
The court explained that, pursuant to N.J.S.A. 52:17B-98, "[t]he Legislature ha[d] designated the Attorney General as New Jersey's `chief law enforcement officer,' responsible `for the general supervision of criminal justice' in the State."
The court determined that the Attorney General had exercised that authority by issuing the IAPP and that N.J.S.A. 40A:14-181 "effectively made" the IAPP "required policy for all municipal law enforcement agencies in New Jersey."
The court also rejected the appellants' argument that the Attorney General could not abrogate N.J.S.A. 47:1A-10 by issuing the Directives.
It noted that "since the 2000 version of the IAPP, ... every iteration of the IAPP has expressly provided that the information and records of an internal investigation could be released at the direction of the Attorney General, an authority the Legislature has never acted to limit or curtail."
Accordingly, we conclude, consistent with
The Township argues that the trial court erred by finding Gannett is entitled to Seidle's IA file under the common law right of access to public records. A decision by the trial court to order release of public records under the common law is reviewed de novo.
To prevail on a claim for access to a public record under the common law, the party seeking access must establish that: (1) the document is a public record under the common law; (2) the party has an "interest in the subject matter" of the record; and (3) a balancing of the party's right to access and the State's interest in non-disclosure favors access.
Here, the trial court correctly determined that Gannett had satisfied the first two elements of the claim under the common law. The court then addressed the third element. In
The judge found that disclosure of Seidle's IA file will not discourage citizens and officers from reporting information, or "chill" agency self-evaluation, program improvement, or other decision making. In her opinion, the judge wrote:
The judge also stated that there were "important public policy considerations" that weigh in favor of maintaining the confidentiality of IA records. The judge noted that the Township had argued "disclosure would discourage citizens from reporting misconduct and obstruct the purpose of the IAPP."
The judge stated that others had asserted disclosure would have a chilling effect on the willingness of an officer's colleagues to report errors or misconduct. The judge also noted that others had suggested disclosure of IA files would erode public confidence in the police, and that criminal defendants could gain access to these records for use in escaping responsibility for their own actions or bringing lawsuits against the police.
The judge found that "[d]espite these compelling reasons," she could not ignore the fact that many of the incidents recorded in Seidle's IA file "have already been disclosed to the public." The judge noted that the MCPO had released information in the file, and that Seidle had voluntarily provided information to the
On appeal, the Township argues that the trial court misapplied the
The Township further argues that affirmance of the trial court's judgment will
In addition, the Township argues that the public disclosure of "kernels" of information in Seidle's IA file is not a basis for the "wholesale disclosure of the records themselves." The Township asserts the trial court was "apparently unconcerned" that the release of Seidle's IA file could interfere with the ability of the United States District Court to manage discovery in the pending civil litigation against Seidle. Finally, the Township contends the MCPO's report did not reveal significant information about Seidle's disciplinary record. It claims that under the IAPP, some of the records either belong to Seidle or are unrelated to the murder of his ex-wife.
Here, the judge correctly recognized there are important public policies that are served by maintaining the confidentiality of IA files.
The judge found, however, that that the unique circumstances of this matter tipped the balance in favor of disclosure. As the judge noted, the records relate to a horrific crime, in which an off-duty officer shot and killed his wife, with his service revolver, in the presence of their young child. The public has a strong interest in knowing how such an event could have occurred.
Moreover, as the judge noted, Seidle's IA file includes records pertaining to twenty-eight interactions with the NTPD by Seidle or his ex-wife. In its report, the MCPO disclosed details on at least eight reported domestic violence incidents, as well as facts regarding Seidle's disputes with other officers, his fitness-for-duty evaluations, psychological treatment, and disciplinary actions.
In addition, the article about Tamara's killing in the
The judge also explained that, in this particular matter, disclosure would not discourage citizens or fellow officers from reporting police misconduct because there was no indication that any complaint was provided by a person or officer on condition of anonymity. The judge stated that any harm resulting from disclosure could be addressed by redactions of the names of witnesses, or officers who investigated the complaints.
We are convinced the trial court thoroughly considered the relevant
We also reject the Township's contention that the trial court was apparently "unconcerned" that disclosure of Seidle's IA file would affect pre-trial discovery in the civil litigation against Seidle. Here, the trial court was charged with deciding whether Gannett was entitled to access to the records under the common law. The court carried out that responsibility and there is nothing in the record indicating the court's decision would have a significant adverse impact upon any related civil litigation.
In addition, we reject the Township's contention that disclosure of Seidle's entire IA file was not warranted because some of the information in that file had nothing to do with Seidle's relationship with his wife. As the judge's opinion reflects, Seidle's entire IA file, including other interactions with citizens and fellow officers, was relevant in assessing why the NTPD allowed Seidle to remain on the force with a service weapon.
As noted previously, the NJSACP contends the trial court failed to consider the State-wide ramifications of publicly releasing IA documents to a newspaper and the effect such disclosure will have on future IA investigations. As we have explained, the judge carefully considered the effect disclosure of an IA file could have upon the agency's functions and other IA investigations.
The judge concluded, however, based on the specific facts and circumstances of this matter, that disclosure was required under the common law. Because the judge's decision was limited to the facts of this case, we do not share the NJSACP's concern that the trial court's decision will have an adverse impact upon IA investigations generally.
We have considered the remaining arguments of the Township and the amici on this issue and conclude that they lack sufficient merit to warrant discussion in this opinion.
The Township argues that the trial court erred by awarding Gannett counsel fees. The Township contends attorney's fees should not be awarded under the common law right of access to public records. As noted, the Attorney General and other amici join in this argument.
Whether the trial court correctly found that attorney's fees can be awarded in a case in which a party seeks access to public records under the common law is a question of law that we review de novo on
The Court then commented that "[t]he parties ha[d] not addressed at length whether the question of attorney's fees merits different treatment in an action brought under the common law[,]" and that "[a]bsent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well."
A few years after
More recently, in
In this matter, the parties and amici disagree as to whether the Court's comment in
We are convinced, however, that an award of attorney's fees was not warranted in this case. Here, the Township denied Gannett's request for disclosure of Seidle's IA file. As stated previously, an officer's IA file is not a record to which the public is entitled to access under OPRA.
Furthermore, there is no statutory right to an award of attorney's fees to a party who successfully pursues a claim under the common law right of access to public records. The Supreme Court in
In this case, the Township advanced good faith arguments in support of its contention that Gannett should not be granted access to the records under the common law. The trial court found a right of access but only after a careful examination of the relevant factors under
Moreover, we are not convinced Gannett is entitled to an award of fees under the catalyst theory. In
The Attorney General was not a defendant in Gannett's lawsuit, and he was not ordered to provide the IA file to Gannett. As we have explained, the trial court ordered the Township to provide Gannett with access to Seidle's IA file; however, the court stayed its orders pending appeal and the Township never provided the records to Gannett.
Rather, while this appeal and cross appeal were pending, the Attorney General provided the records to the public pursuant to the IAPP, in the exercise of his separate and independent authority as chief law enforcement officer in this State. There is no indication that the Attorney General acted to correct what he perceived to be an unlawful practice.
Indeed, as noted previously, the Attorney General has taken no position on whether Gannett was entitled to access to Seidle's file under the common law. It appears the Attorney General ordered the release of the file because he decided that disclosure was warranted in the public interest. We therefore conclude that, under these circumstances, Gannett was not entitled to an award of attorney's fees for this action.
Affirmed in part and reversed in part on the appeal; and affirmed on the cross appeal.