Court Unhands Police Use of Force Information to Public

November 8, 2009

WEST MILFORD — In a victory for open-government and police accountability, the New Jersey Appellate Division ruled today that "use of force" reports, which document the circumstances surrounding a police officer's use of force against a citizen, are government records that must be made available to the public under the Open Public Records Act (OPRA).

"This decision opens a necessary window for advocates, journalists, and above all, members of the public," said ACLU-NJ Open Governance Staff Attorney Bobby Conner, who argued the case before the court in June. "The public has a right to know when police force is justified and when it's used recklessly. Replacing secrecy with sunshine allows the public to truly make progress in ensuring the government follows its own laws."

The ACLU-NJ's Open Governance Project filed a friend of the court brief challenging West Milford's failure to disclose use of force reports, requested by resident Martin O'Shea. The town claimed the records should be exempt from public access under OPRA as "criminal investigatory records" both because they pertain — however tangentially — to criminal investigations and because no specific law requires police departments to keep use of force reports.

However, as the ACLU-NJ argued and the court upheld, the Attorney General enforces a policy requiring all law enforcement officers to complete a use of force report any time physical, mechanical or deadly force is used against another person, giving the policy the force of law. Moreover, because use of force reports are used anytime a police officer uses force, irrespective of any criminal investigation, West Milford's claim was further invalidated.

Use of force reports extend beyond a public record for the ACLU-NJ, which advocates for the state's local police departments to adopt best practices and works toward greater police transparency and accountability. An ACLU-NJ report - The Crisis Inside Police Internal Affairs (1.2mb PDF) - released in June 2009 found that nearly every police department across the state violated the Attorney General's Internal Affairs Policies and Procedures when citizens complained against police, revealing cracks within police departments that threaten accountability to the public.

"Giving citizens insight into how police officers exercise their power places the police's accountability directly in the public's hands," said ACLU-NJ Executive Director Deborah Jacobs. "The first step to understanding whether the police are acting in our best interest is to understand the actions they're taking."

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