JOHN PAFF VS. NEW JERSEY STATE POLICEÂ (L-1984-15, MERCER COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2877-15T2
    
    JOHN PAFF,
    
            Plaintiff-Appellant,
    
    v.
    
    NEW JERSEY STATE POLICE,
    THOMAS PRESTON in his
    capacity as Custodian of
    Records for the New Jersey
    State Police, NEW JERSEY
    DIVISION OF CRIMINAL JUSTICE
    AND ROBERT MCGRATH, in his
    capacity as Records Custodian
    for the New Jersey Division
    of Criminal Justice,
    
         Defendants-Respondents.
    _______________________________
    
                  Argued July 25, 2017 – Decided August 7, 2017
    
                  Before Judges Reisner and Suter.
    
                  On appeal from the Superior Court of New
                  Jersey, Law Division, Mercer County, Docket
                  No. L-1984-15.
    
                  Michael J. Zoller argued the cause for
                  appellant (Pashman Stein Walder Hayden,
                  attorneys; CJ Griffin, of counsel; Mr. Griffin
                  and Meghan Gorman Cohen, on the brief).
    
                  Suzanne Davies, Deputy Attorney General,
                  argued the cause for respondents (Christopher
                S. Porrino, Attorney General, attorney; Lisa
                A. Puglisi, Assistant Attorney General, of
                counsel; Daniel M. Vannella, Deputy Attorney
                General, of counsel; Mr. Vannella and Ms.
                Davies, on the brief).
    
    PER CURIAM
    
           Plaintiff John Paff appeals from a February 5, 2016 order
    
    denying his application - to compel defendants to produce certain
    
    investigatory records, or alternatively seeking a Vaughn1 index or
    
    in camera review of the documents - and dismissing his complaint
                                 2
    based on the common law.           Our review of the trial court's
    
    decision is de novo.     Drinker Biddle & Reath L.L.P v. N.J. Dep't
    
    of Law & Pub. Safety, 
    421 N.J. Super. 489
    , 497 (App. Div. 2011).
    
    After reviewing the record in light of that standard, we affirm.
    
           Plaintiff's record request asserted that plaintiff had heard
    
    rumors    that   a   particular   county   sheriff     might   be     under
    
    investigation for "some sort of impropriety."        Plaintiff expressed
    
    an interest in posting information about the investigation on his
    
    internet blog, in order to inform      the public as to the outcome
    
    
    
    1
        Vaughn v. Rosen, 
    484 F.2d 820
     (D.C. Cir. 1973).
    2
      At oral argument of this appeal, plaintiff's counsel advised us
    that plaintiff is seeking a Vaughn index or an in camera review
    of documents, but is not seeking either the names of witnesses or
    copies of their statements.       He conceded that if existing
    investigatory documents consisted only of witness statements,
    there would be no need for an in camera review or a Vaughn index,
    because the statements would not be subject to disclosure.
    
                                       2                                A-2877-15T2
    of the investigation.     Plaintiff applied to the county prosecutor,
    
    the State Police and the Division of Criminal Justice (DCJ),
    
    seeking "[a] copy of each document in your agency's files regarding
    
    the investigation[,]" based on his expressed concern about whether
    
    those agencies had "conducted a reasonable investigation[.]"
    
           The State Police confirmed that the records plaintiff sought
    
    were   "part   of   a   criminal   investigation   and   include[d]   two
    
    investigation reports."      Both the State Police and DCJ declined
    
    to provide further information, asserting that the documents were
    
    exempt from the     Open Public Records Act   (OPRA), N.J.S.A. 47:1A-
    
    1.1, and that the State's interest in the confidentiality of
    
    criminal investigatory records outweighed plaintiff's expressed
    
    common-law interest in access to the records.            Plaintiff filed
    
    suit asserting only rights under the common law, and asserting for
    
    the first time that the alleged misconduct concerned "sexual
    
    impropriety."3
    
    
    
    
    3
      Other than plaintiff's complaint, no documents in the record
    presented to us indicate what type of alleged "impropriety" was
    involved in the investigation.     At oral argument in the trial
    court, the State declined to disclose the subject matter of the
    investigation. The State also advised the judge that it was not
    "in a position to state whether the investigation [was] open or
    closed."    The trial judge's opinion assumed the truth of
    plaintiff's assertion that the investigation involved alleged
    sexual harassment, and the trial court's order referred to "alleged
    sexual misconduct."
    
                                         3                           A-2877-15T2
         After    considering   the   factors   set   forth   in     Loigman    v.
    
    Kimmelman, 
    102 N.J. 98
    , 113 (1986), Assignment Judge Mary C.
    
    Jacobson determined that plaintiff's interest in discovering the
    
    thoroughness of the investigation, was outweighed by the following
    
    factors:     DCJ's interest in the confidentiality of its criminal
    
    investigation; the privacy interests of "any witnesses who gave
    
    testimony in the investigation, [including] other law enforcement
    
    officers or victims of sexual harassment"; and the sheriff's
    
    privacy interest against disclosure of an investigation that had
    
    not resulted in an indictment or in the filing of any charges.
    
         The   judge   credited   defendants'    argument     that    releasing
    
    criminal investigation reports could result in reprisals against
    
    witnesses - or could cause them embarrassment by making public
    
    personal details they expected to remain confidential - and could
    
    chill the willingness of witnesses to come forward in future
    
    investigations. Judge Jacobson also concluded that, "a Vaughn
    
    index is not even warranted, because the balance tips so heavily
    
    in favor of the law enforcement defendants in this case."
    
         We affirm, substantially for the reasons stated in the judge's
    
    December 8, 2015 oral opinion. We add these comments.
    
           After Judge Jacobson issued her opinion, another panel of
    
    this court decided North Jersey Media Group, Inc. v. Bergen County
    
    Prosecutor's Office, 
    447 N.J. Super. 182
     (App. Div. 2016), and our
    
                                        4                                A-2877-15T2
    Supreme Court decided North Jersey Media Group, Inc. v. Township
    
    of Lyndhurst, __ N.J. __ (2017).       We conclude that Bergen County
    
    Prosecutor's Office is pertinent here, because the case involved
    
    a citizen inquiry about an investigation that had either never
    
    occurred, or had occurred but did not result in the filing of any
    
    charges.    Bergen Cty. Prosecutor's Office, supra, 447 N.J. Super.
    
    at 189.    The prosecutor's office there declined to confirm or deny
    
    the existence of an investigation, and the court held that such
    
    disclosure was not required under either OPRA or the common law.
    
    Id. at 209-12.     The principles discussed in the case are relevant
    
    here:   in an investigation of the type presented in that case, and
    
    here, the privacy and reputational interests of the person under
    
    investigation, the security of witnesses, and the interests of law
    
    enforcement in obtaining the cooperation of witnesses, outweigh
    
    the   inquirer's   generalized   interest   in    making   sure   that   all
    
    criminal investigations are conducted thoroughly.          Id. at 203-04.
    
    "It does not constitute a clear showing of . . . public need to
    
    say only[,]" as plaintiff does here, "that there may be something
    
    corrupt that should be exposed for the benefit of the public."
    
    Loigman, supra, 102 N.J. at 108.
    
            We cannot agree with plaintiff that Lyndhurst compels a
    
    different    result.     In   Lyndhurst,    the   Court    clarified     the
    
    application of the common law to requests for law enforcement
    
                                       5                                A-2877-15T2
    investigation records. In addressing a case involving the shooting
    
    of a suspect by the police, the Court concluded that the Attorney
    
    General's     interest      in     the   integrity          of   the   investigation
    
    outweighed    the       interest    of   a       news    organization    in   seeking
    
    information about the investigation. The Court held that "the
    
    danger to an ongoing investigation would typically weigh against
    
    disclosure    of    detailed       witness       statements      and   investigative
    
    reports while the investigation is underway, under both OPRA and
    
    the common law." Lyndhurst, supra, ___ N.J. ___ (slip op. at 4).
    
           However, the Court also observed that disclosure of dash-cam
    
    videos of a police shooting were of great interest to the public,
    
    and their disclosure was less likely to compromise an investigation
    
    than disclosure of witness statements or police reports.                         Based
    
    on the public's strong interest in the proper investigation of
    
    police shootings, the Court determined that once law enforcement
    
    has interviewed the principal witnesses to the shooting, the
    
    public's interest in disclosure of those police dash-cam videos
    
    would outweigh the State's interest in confidentiality under the
    
    common law.    Id. at __ (slip op. at 48).
    
           Lyndhurst addressed a case in which the central event was
    
    publicly known - the police shot and killed a civilian - and it
    
    involved a matter of enormous public interest.                    By contrast, this
    
    case   involves     a    rumor     (apparently          disseminated    by   plaintiff
    
                                                 6                                 A-2877-15T2
    himself through his blog) about some possible impropriety, which
    
    has thus far resulted in no arrest, criminal charge, or indictment,
    
    nor   even   a   civil   complaint   by    anyone   claiming   to   have   been
    
    subjected to improper conduct.            We agree with plaintiff that the
    
    public has a strong interest in ensuring the integrity of law
    
    enforcement agencies and officers, but the invocation of that
    
    general interest here does not outweigh DCJ's interest in the
    
    confidentiality of its investigation.          See Bergen Cty. Prosecutor,
    
    supra, 447 N.J. Super. at 210-12.
    
          Affirmed.
    
    
    
    
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