WILLIAM J. BRENNAN VS. MIDDLESEX COUNTY PROSECUTOR'S OFFICE (L-0293-15, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 29, 2018
• Docket: A-1994-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1994-15T2

WILLIAM J. BRENNAN,

Plaintiff-Appellant/ Cross-Respondent,

v.

MIDDLESEX COUNTY PROSECUTOR'S OFFICE and JAMES O'NEILL, Custodian of Records for the Middlesex County Prosecutor's Office,

Defendants-Respondents/ Cross-Appellants. ————————————————————————————————

Submitted September 19, 2017 – Decided August 29, 2018

Before Judges Reisner, Hoffman and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0293-15.

Law Office of Donald F. Burke, attorneys for appellant/cross-respondent (Donald F. Burke and Donald F. Burke, Jr., on the brief).

Thomas F. Kelso, Middlesex County Counsel, attorney for respondents/cross-appellants (Benjamin D. Leibowitz, Senior Deputy County Counsel, on the brief).

PER CURIAM Plaintiff William J. Brennan appeals from an October 23, 2015

Law Division reconsideration order1 that reversed and vacated

previous orders compelling the Middlesex County Prosecutor's

Office (MCPO) to produce mobile video recordings (MVRs) of all New

Brunswick Police Department pursuits from "January 2004 to

present," pursuant to the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13. The MCPO cross-appeals from an earlier Law

Division order, asserting the court incorrectly found it created

a list of cases utilizing Promis Gavel that involved the New

Brunswick Police Department charging individuals with eluding an

officer, N.J.S.A. 2C:29-2(b).2

We reject plaintiff's argument, and affirm the order under

review. In light of that disposition, we find it unnecessary to

address the cross-appeal. We therefore affirm on the appeal and

dismiss the cross-appeal as moot.

On December 15, 2014, plaintiff sent an email to the MCPO

requesting "[v]ideo and audio recording of police pursuits engaged

in by members of the New Brunswick Police Department from January

2004 to present," in accordance with OPRA and the common law. Two

1 Plaintiff also appeals from a November 19, 2015 order denying his request for counsel fees. 2 Defendant asserts it did not produce the Promis Gavel list, but rather plaintiff obtained that list from a related civil proceeding.

2 A-1994-15T2 days later, the MCPO custodian of records emailed plaintiff,

explaining the MCPO did not "maintain a file on 'police pursuits,'"

and "[t]he only way . . . to identify cases involving an eluding

charge is to utilize the Judiciary Communications Network,

commonly referred to as the [P]romis [G]avel computer system."

However, he further explained the MCPO is not authorized to use

Promis Gavel to research OPRA requests. He also advised the

request would require "excessive research," and "these MVRs are

exempt as criminal investigatory records . . . ."

The trial judge initially ordered the MCPO to produce the

requested MVRs and awarded counsel fees, concluding the MVRs were

not exempt from disclosure. The MCPO moved for reconsideration

after we decided North Jersey Media Group, Inc. v. Township of

Lyndhurst, and held that MVRs constitute exempt criminal

investigatory records "when an officer turns on a mobile video

recorder to document a traffic stop or pursuit of a suspected

criminal violation of law." 441 N.J. Super. 70, 105 (App. Div.

2015), aff'd in part & rev'd in part on other grounds, 229 N.J.

541 (2017). The trial court granted the motion, and held,

"Clearly[,] MVRs fall within the Appellate Division's

understanding of the criminal investigatory record exception[,]

and based on Lyndhurst[,] the MVRs produced by . . . [d]efendant

3 A-1994-15T2 are exempt from disclosure."3 The judge ordered the MCPO to

produce five emails about the videos, but denied counsel fees.

In June 2016, a different panel of this court disagreed with

Lyndhurst, when it decided Paff v. Ocean County Prosecutor's

Office, 446 N.J. Super. 163, 186 (App. Div.), rev'd, ____ N.J. ____

(2018). On July 11, 2017, our Supreme Court issued its decision

in Lyndhurst, affirming in part and reversing in part. Relevant

to the matter under review, the Court declined to address whether

the MVRs in that case were "required by law," because the record

lacked sufficient facts regarding the creation of the MVRs. 229

N.J. at 567-69. Instead, the Court indicated it would address

this issue when it decided Paff v. Ocean County Prosecutor's

Office. Ibid. On August 13, 2018, the Court decided Paff,

concurring "with the panel's dissenting judge that the MVR

recordings were not 'required by law' within the meaning of

N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory

records under that provision, and that they are therefore not

subject to disclosure under OPRA." ____ N.J. ____ (slip op. at 4).

3 Just before plaintiff filed his appellate brief, the MCPO sua sponte turned over the subject videos, apparently in an attempt to render the appeal moot, and perhaps to resolve discovery disputes in a related civil rights case. However, plaintiff continued with his appeal, seeking counsel fees.

4 A-1994-15T2 The Court's holding in Paff defeats plaintiff's principal

arguments on appeal that "the trial court erred in concluding the

MVRs requested were exempt from disclosure as criminal

investigatory records" and that he "is a prevailing party entitled

to an award of reasonable [counsel] fees." The MVRs plaintiff

sought here were created at a time when they were not required by

law to be made. Moreover, given the broad request for MVRs related

to "police pursuits," plaintiff's OPRA request, by its own

phrasing, pertained to criminal investigations.

Plaintiff's brief also included an alternative argument, that

the trial court "erred in not requiring the MVRs to be produced

under the common law." In deciding the motion for reconsideration,

the trial court stated, "With regard to the [c]ommon [l]aw [r]ight

of [a]ccess, the [c]ourt is not persuaded to reconsider its

previous denial. Plaintiff did not articulate a reason for seeking

the tapes and therefore, the balance weighs in favor of the

government's right of confidentiality." Plaintiff's brief fails

to set forth any specific reasons presented to the trial court

regarding his interest in reviewing the MVRs at issue. As the

trial court correctly noted, "[p]laintiff . . . has articulated

nothing more than his interest as a taxpayer."

To gain access to materials under the common law right of

access: "(1) 'the person seeking access must establish an interest

5 A-1994-15T2 in the subject matter of the material'; and (2) 'the citizen's

right to access must be balanced against the State's interest in

preventing disclosure.'" Mason v. City of Hoboken, 196 N.J. 51,

67 (2008) (quoting Keddie v. Rutgers, 148 N.J. 36, 50 (1997); see

also Paff, ____ N.J. ____ (slip op. at 35). Because plaintiff

failed to establish an interest in the MVRs, we affirm the trial

court's rejection of plaintiff's request to gain access to the

MVRs under the common law right of access.

Affirmed as to the appeal; the cross-appeal is dismissed as

moot.

6 A-1994-15T2