On July 13, 2022, the Appellate Division decided Kratovil v. City of New Brunswick, which is an OPRA case in which we represented the Plaintiff. A copy of the opinion is available here.
In this case, Plaintiff sought information regarding several aggravated assaults that occurred in New Brunswick during January, February and March 2021. Plaintiff requested information that is generally required to be disclosed to the public upon request when a crime has occurred or when an arrest has been made. The information that must be disclosed includes, among other things, information about the crime, information about the victim, whether a weapon was used and what type, the location of the crime and the charges, if any. This information must be disclosed pursuant to N.J.S.A. 47:1A-3(b), which we and the Court shortened to “3(b) Information.”
Plaintiff’s OPRA requests involved a total of 31 incidents during that timeframe. Although the Defendants provided some limited information about the 31 incidents, much 3(b) Information was not disclosed, especially whether anyone was arrested regarding the incidents or what type of weapon was used (for example, a firearm or a knife).
When the Defendants did not provide Plaintiff with further 3(b) Information, we filed an OPRA lawsuit in Superior Court. The Defendants argued that no further 3(b) Information could be provided because of ongoing investigations. Although the Defendants submitted certifications in support of their arguments, these certifications were submitted under seal for the trial court’s eyes only. After reviewing that information, the trial court held that the Defendants did not have to disclose any additional information.
We appealed. On appeal, the Appellate Division reversed in part and remanded the case to the trial court. The Appellate Division held that regarding twenty of the incidents, Defendants had “acknowledged” in their certifications filed with the trial court that “disclosing additional information about those incidents would not jeopardize an ongoing investigation.” But despite making this concession to the trial court, the Defendants never produced the additional information. The Appellate Division held that the “information should have been disclosed by the City as soon as it was conceded that it was not protected from disclosure.” Therefore, the Appellate Division reversed the trial court and ordered that the additional 3(b) Information regarding these 20 incidents be disclosed.
In addition, while the Appellate Division held that the City did correctly withhold additional information regarding incidents that occurred on eight specific days, the Appellate Division also ordered the City to produce additional certifications to show whether “there still is a justification for withholding 3(b) Information concerning those incidents.” The Appellate Division held that when a requestor challenges a denial of access to records regarding a criminal investigation, the City “had an obligation to inform plaintiff when the investigation concluded or publicly disclosed charges had been filed.” This included the time during which the case was on appeal.
Although the Appellate Division’s opinion is unpublished, which means that it ordinarily cannot be cited or relied upon by other courts, it offers an excellent guide regarding how practitioners and requestors should enforce requests for 3(b) Information that are not honored by public agencies.