States Newsroom Inc., Etc. v. City of Jersey City

• Court: New Jersey Superior Court Appellate Division
• Decided: September 26, 2024
• Docket: A-2721-22
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2721-22

STATES NEWSROOM INC., a foreign Nonprofit corporation d/b/a NEW JERSEY MONITOR,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY and SEAN GALLAGHER in his official capacity as Records Custodian,

Defendants-Respondents,

and

JERSEY CITY POLICE SUPERIOR OFFICERS ASSOCIATION,

Defendant/Intervenor- Respondent. ______________________________

Argued September 19, 2024 – Decided September 26, 2024

Before Judges Mawla, Natali, and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2055-22.

CJ Griffin argued the cause for appellant (Pashman Stein Walder Hayden, PA, attorneys; CJ Griffin, on the briefs).

Jeremy David Jacobsen, Assistant Corporation Counsel, argued the cause for respondents (Peter Baker, Corporation Counsel, attorneys; Jeremy David Jacobsen, on the brief).

Jeffrey Daniel Catrambone argued the cause for intervenor-respondent (Sciarra & Catrambone, LLC, attorneys; Jeffrey Daniel Catrambone, of counsel and on the brief).

Markiana J. Julceus argued the cause for amicus curiae American Civil Liberties Union (American Civil Liberties Union of New Jersey Foundation and Lowenstein Sandler LLP, attorneys; Liza F. Weisberg, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief).

PER CURIAM

Plaintiff States Newsroom Inc. appeals from an April 4, 2023 order, which

denied its request for defendants City of Jersey City and its records custodian

Sean Gallagher to unseal and release certain internal affairs (IA) records and for

attorneys' fees. We affirm in part, and reverse and remand in part for further

proceedings consistent with this opinion.

A-2721-22 2 In August 2019, a lieutenant with the Jersey City Police Department

(JCPD) hosted a barbeque for friends and family at his home. At the end of the

party, there was an argument about what to do with leftovers. The fight

escalated when the lieutenant retrieved his shotgun from a locked safe inside the

house, said "today is your day[,]" and then discharged the weapon.

A partygoer called 9-1-1 and State Police responded to the house and

found the lieutenant's girlfriend and her son restraining him. The State Police

incident report noted the lieutenant appeared to be under the influence.

Police charged the lieutenant with making terroristic threats and

possession of a weapon for an unlawful purpose. The latter charge was a Graves

Act offense. He also signed a consent for search form, which the troopers

executed, seizing thirty different firearms from his home, including the shotgun

used in the incident. The lieutenant pled guilty to a lesser charge and completed

pre-trial intervention (PTI). Afterwards, he sent notice to all relevant agencies

to expunge their records of his criminal matter, pursuant to N.J.S.A 2C:52-1.

Separately, the JCPD conducted an IA investigation into the incident. The

IA report concluded the lieutenant had negligently used a firearm while under

the influence. JCPD suspended the lieutenant for ninety days. The punishment

was anonymized, then published in the JCPD's 2020 major discipline report.

A-2721-22 3 In 2020, while reporting on an unrelated murder trial, the New Jersey

Monitor, a subsidiary of plaintiff, noticed the still-anonymous discipline

excerpt. The excerpt described the amount of alcohol the lieutenant consumed

before the incident, the charges, and his completion of PTI.

In the matter of In re Attorney General Law Enforcement Directive

Numbers 2020-5 & 2020-6, our Supreme Court ordered all law enforcement

agencies to de-anonymize their discipline reports. 246 N.J. 462, 476 (2021). In

compliance, the JCPD added the lieutenant's name back to the report but

subtracted any details about the offense.

One year later, in Rivera v. Union County Prosecutor's Office, the Court

ruled IA reports can be accessed pursuant to a common law right of access. 250

N.J. 124, 135 (2022). As a result, plaintiff submitted an Open Public Records

Act (OPRA) request for a copy of the IA report from defendants. Defendants

denied the request, claiming the matter did not relate to concerns about public

trust related to bias or dishonesty.

In June 2022, plaintiff sued for access to the IA report regarding the

lieutenant. The Jersey City Police Superior Officers Association (JCPSOA)

intervened, and along with defendants, filed separate opposition to the relief

sought by plaintiff. Defendants and JCPSOA each moved to seal the record.

A-2721-22 4 The trial court denied the requests to seal. After further motion practice, the

parties agreed to temporarily seal the matter, pending the outcome of the case.

In April 2023, the trial judge heard oral argument and summarized

plaintiff's argument. Plaintiff asserted the expungement order did not seal the

lieutenant's IA file and defendants were not required to comply with the order

because it does not apply to IA or personnel records. The expungement statute

contains certain exceptions including that "[i]nformation divulged on expunged

records shall be revealed by a petitioner seeking employment within the judicial

branch or with a law enforcement or corrections agency and such information

shall continue to provide a disability as otherwise provided by law." N.J.S.A.

2C:52-27(c). Plaintiff reasoned, therefore, that "professionals who face

disciplinary charges are not protected from their charges becoming public . . . ."

Plaintiff also argued there were public policy reasons for learning about the

lieutenant's misconduct and "the functioning of the [JCPD] and their [IA]

department." And "there would not be a reasonable expectation of privacy

because other news publications have written about the [lieutenant's]

misconduct and discipline."

The trial judge concluded although "the expungement statute is broad . . .

it does not obliterate the record of conviction . . . ." He noted the State Police

A-2721-22 5 was specifically named in the expungement order and defendants had a duty not

to release those records once received from the State Police. Although there

was "a legitimate interest of the public to know how [IA] departments work[,]"

defendants were bound by N.J.S.A. 2C:52-30, which states: "Except as

otherwise provided in this chapter, any person who reveals to another the

existence of an arrest, conviction or related legal proceeding with knowledge

that the records and information pertaining thereto have been expunged or sealed

is a disorderly person." The judge denied plaintiff access to the IA records,

continued to seal the case, and denied plaintiff attorneys' fees and costs.

Following the judge's ruling, plaintiff's counsel asked the judge to confirm

that his ruling meant he "does not reach the Rivera balancing factors[;] it's just

simply a matter of the expungement order applying to the [JCPD], correct?" The

judge replied he did not "need to get to that point."

I.

We review a trial judge's rulings on matters of law, including the

applicability, validity, or interpretation of statutes de novo. In re Ridgefield

Park Bd. of Educ., 244 N.J. 1, 17 (2020). As a result, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,

A-2721-22 6 239 N.J. 531, 552 (2019) (alteration in original) (quoting Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

II.

Plaintiff acknowledges N.J.S.A. 2C:52-1(a) protects records of expunged

criminal charges from disclosure, namely, "records on file within any court,

detention or correctional facility, law enforcement or criminal justice agency

concerning a person's detection, apprehension, arrest, detention, trial or

disposition of an offense within the criminal justice system." Additionally,

N.J.S.A. 2C:52-1(b) defines expunged records. But plaintiff argues it does not

include IA reports.

The entities that must be noticed for an expungement petition include the

Attorney General, the State Police, law enforcement agencies, and courts

involved in the arrest, detention, or criminal prosecution. N.J.S.A. 2C:52 -10.

According to plaintiff, therefore, the expungement statute applies only to the

courts and entities involved in a criminal prosecution and law enforcement

agencies. Because defendants were not involved in the lieutenant's criminal case

and the IA report was borne of the non-criminal disciplinary proceeding of a

city employee for misconduct, the trial judge should have released the

information.

A-2721-22 7 Plaintiff argues the public has an interest in knowing the lieutenant was

the subject of an IA investigation, and then disciplined for violent behavior. It

contends the public interest far outweighs the interest of an officer who seeks to

use expungement to hide his transgressions.

Although N.J.S.A. 2C:52-27 states the matter which is expunged is

"deemed not to have occurred, and the [subject] may answer questions relating

to . . . [it] accordingly," the prohibition is not absolute. N.J.S.A. 2C:52-27(c) is

an exception; it states "[i]nformation divulged on expunged records shall be

revealed by a petitioner seeking employment within the judicial branch or with

a law enforcement or corrections agency and such information shall continue to

provide a disability as otherwise provided by law." Plaintiff alleges the

exception exists because it would defy logic to absolutely shield criminal

records in the manner as suggested by defendants since it would hide the

information from an employer or licensing authority and prevent them from

disciplining the employee or licensee. We address these arguments in turn.

N.J.S.A. 2C:52-1 states:

(a) Except as otherwise provided in this chapter, expungement shall mean the extraction, sealing, impounding, or isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial

A-2721-22 8 or disposition of an offense within the criminal justice system.

(b) Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.

Even though the JCPD was not involved in the lieutenant's criminal

prosecution and its role here is as his employer, it is a law enforcement agency

pursuant to N.J.S.A. 2C:52-1(a). The statute does not list IA reports as an

expunged record under N.J.S.A. 2C:52-1(b), but an IA report can reference or

include documents covered by N.J.S.A. 2C:52-1(b).

The expungement statute states the "[i]nspection of the files and records,

or release of the information contained therein, which are the subject of an order

of expungement . . . may be permitted by the Superior Court upon motion for

good cause shown and compelling need based on specific facts." N.J.S.A.

2C:52-19. Therefore, the judge should have determined whether the IA records

included expunged records and what could be released rather than hold the

statute was an absolute bar to the information sought.

III.

Plaintiff argues the trial judge also erred when he declined to analyze its

claims under the common law. It urges us to remand for the judge to conduct

A-2721-22 9 an in camera review of the IA report to determine whether it can be released and

for findings under the common law factors.

Plaintiff claims there is a strong presumption of access to records of a civil

action because of the constitutional and common law right of access to judicial

proceedings and the attendant right to inspect judicial records. It notes Rule

1:2-1 and Rule 1:38-11 require all proceedings to be conducted in open court,

and no record may be sealed except where good cause is shown. Plaintiff alleges

the trial judge did not require defendants to demonstrate good cause or an

interest that outweighed the presumption of access.

Amicus, the American Civil Liberties Union, joins this aspect of plaintiff's

argument and asserts the trial judge was obligated to consider the Rivera factors

to determine whether there is a common law right of access to the records. It

claims the trial judge should have chosen redaction or some other less-intrusive

means of addressing defendants' concerns, rather than categorically sealing the

record.

Rivera involved an IA investigation of the director of a police department,

which concluded he used racist and sexist language when discussing employees.

250 N.J. at 135. After the director resigned, the plaintiff requested records

relating to the incident under OPRA and the common law, including the IA

A-2721-22 10 report. Ibid. The request was denied, citing a need for privacy. Ibid. The Court

remanded to the trial court to consider whether to release the IA materials

pursuant to the common law right of access. Id. at 136.

The common law right of access requires courts to consider the following

factors:

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

[Id. at 144 (quoting Loigman v. Kimmelman, 102 N.J. 98, 113 (1986)).]

The Court stressed the factors are not exhaustive because they "focus[]

primarily on the State's interest in preventing disclosure" and confidentiality,

which must be balanced against the public's interest. Id. at 144-45, 147.

Although "[s]tatutes and regulations can also factor into the balancing process[,]

A-2721-22 11 [they] do not determine its outcome. Expressions of executive or legislative

policy can weigh very heavily in the analysis, but they are not dispositive." Id.

at 144.

The Court held "the public has an interest in the disclosure of internal

affairs reports in order to hold officers accountable, to deter misconduct, to

assess whether the internal affairs process is working properly, and to foster

trust in law enforcement." Id. at 147. Considerations that may heighten the

public's interest in transparency include: (1) the nature and seriousness of the

misconduct; (2) whether the alleged misconduct was substantiated; (3) the

nature of the discipline imposed; (4) the nature of the official's position; and (5)

the individual's record of misconduct. Id. at 148.

The trial judge should have analyzed the facts of this case by applying

Loigman and Rivera. We do not portend what the trial judge will ultimately

decide when he reconsiders his decision on remand. However, the lieutenant's

position, the misconduct he engaged in outside of the scope of his work, the

charges he faced, the subsequent guilty plea to a different offense and PTI, and

the IA investigation generated in the aftermath, point to the fact the public would

have an interest in disclosure and transparency. Although the record may still

A-2721-22 12 develop on remand, based on the record before us, none of the six Loigman

factors appear to favor non-disclosure.

For these reasons, we remand to the trial judge to conduct an analysis of

the factors and reach his own conclusions. As required by Rivera, the judge

shall review the IA report in camera, and if he satisfied the factors have been

met to warrant disclosure, he should make the appropriate redactions to protect

legitimate confidential information 1 and release the information. Rivera, 250

N.J. at 151.

It follows from our analysis of the expungement statute, and the want of

findings under the common law factors, that the judge should not have sealed

the entire file without finding good cause to overcome the strong presumption

of public access to court records. See R. 1:2-1(c) and R. 1:38-11. The onus was

1 The items subject to redaction include

the names of complainants, witnesses, informants, and cooperators, as well as information that could reasonably lead to the discovery of their names; non- public, personal identifying information about officers and others, such as their home addresses and phone numbers; and personal information that would violate a person's reasonable expectation of privacy if disclosed, such as medical information.

[Rivera, 250 N.J. at 150.] A-2721-22 13 on defendants to demonstrate their interest in secrecy substantially outweighed

the presumption of public access to the records. Hammock by Hammock v.

Hoffmann-LaRoche, Inc., 142 N.J. 356, 381 (1995).

"[T]he trial court . . . must examine each document individually and make

factual findings with regard to why the presumption of public access has been

overcome." Id. at 382 (emphasis in original). This is because "[t]he need for

secrecy should extend no further than necessary to protect the confidentiality .

Documents should be redacted when possible, editing out any privileged or

confidential subject matter . . . ." Ibid. (citing S. Jersey Pub. Co. Inc. v. N.J.

Expressway Auth., 124 N.J. 478, 488-89 (1991)). The judge should also

consider whether the information is already "in the public domain . . . ." Id. at

384 (quoting Smith v. BIC Corp., 869 F.2d 194, 199-200 (3d Cir. 1989)).

The portion of the April 4, 2023 order denying plaintiff's request to unseal

the matter is reversed. We direct the trial judge to undertake the necessary

analysis required under the Rules of Court and Hammock before deciding

whether to seal this case.

IV.

Finally, at oral argument, plaintiff advised it did not brief the fee issue

considering the Supreme Court's ruling common law right of access claims are

A-2721-22 14 not an exception to the American rule, which bars fee shifting. Gannett Satellite

Info. Network, LLC v. Twp. of Neptune, 254 N.J. 242, 265 (2023). This aspect

of the trial judge's decision is affirmed.

Affirmed in part, and reversed and remanded in part. We do not retain

jurisdiction.

A-2721-22 15