Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

A recent Appellate Division decision provides for increased transparency into the activities of law enforcement, ruling that a use of force report (“UFR”) involving a minor should not have been withheld under New Jersey’s Open Public Records Act of 2001 (“OPRA”). A UFR is a one-page report required by a New Jersey Attorney General directive to be filed in all circumstances in which law enforcement personnel use physical, mechanical, or deadly force against a civilian.

In January 2018, a Trentonian reporter received a tip that Ewing Township law enforcement used excessive force against a minor. The reporter filed a public records request for any UFRs generated as a result of the encounter. Ewing denied the request, citing OPRA, which provides that “records of law enforcement agencies, pertaining to juveniles charged as delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection.”

The Trentonian sued Ewing and its municipal clerk for release of the UFR, arguing that the UFR should be released in redacted form, removing the identifying information about the minor but leaving the information about the police officer’s use of force. The trial court upheld Ewing’s denial of access, finding that the UFR was a juvenile record protected from disclosure under OPRA.

The Trentonian appealed, joined by friends-of-the-court The American Civil Liberties Union of New Jersey and Reporters Committee for Freedom of the Press and other media organizations, who agreed with the Trentonian that the reports were not records that “pertained” to the minor who was the subject of force and argued that access to use of force reports where the subject is a minor is consistent with the mandates of OPRA and necessary for public oversight of police conduct. The New Jersey Attorney General, who also appeared as amicus, drew the Appellate Division’s attention to various public agency statements highlighting that the purpose of UFRs is to provide transparency regarding law enforcement conduct and argued that redacting a UFR involving a minor subject would preserve the minor’s privacy and promote the public’s interest in transparency.

The Appellate Division noted that “[b]ecause police departments are required by law to file UFRs, the public is entitled to access under OPRA.” The Appellate Division determined that Ewing failed to make a clear showing that a UFR with a juvenile subject is exempt from disclosure. The Appellate Division concluded that a juvenile UFR is not a record “pertaining” to juveniles; rather, it is a record pertaining to police conduct, and redacting the subject’s name protects anonymity.