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New Jersey Superior Court, Appellate Division/Amicus

Bobby Conner/ACLU-NJ

The ACLU-NJ filed a friend-of-the-court brief in the Appellate Division opposing West Milford's attempt to broadly interpret the "criminal investigatory records" exception to the Open Public Records Act. This act defines such records as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." A local resident requested the "Use of Force Reports" that police officers are required to file with the Attorney General. West Milford argues that, despite the fact that the Attorney General requires all law enforcement officers file Use of Force Reports when physical, mechanical or deadly force is used, the Reports are not "required by law" because the AG's policy is not mandated by a specific statute or administrative code. We argue that, since the AG has general statutory authority to impose requirements on police and prosecutors, her mandatory orders have the force of law; and the Use of Force Reports are therefore "required by law to be made" and, thus, not an investigatory record. Additionally, we argue that the Reports do not fit under the exception because they do not pertain to a criminal investigation. Indeed, the Reports are required even if, unrelated to any criminal investigation, an officer accidentally discharges his gun and hits an innocent by-stander. We also highlight the public importance of access non-investigatory records for research and public policy considerations.

Current Status: In November 2009, the Appellate Division ruled that Use of Force Reports are not criminal investigatory records and that they are therefore subject to disclosure under the Open Public Records Act.

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