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Court Clarifies Custodian’s Requirements to Produce Certain Police Records
By Dana A. Stefanoni on June 25, 2020
Court Clarifies Custodian’s Requirements to Produce Certain Police Records

In a shift from past opinions, a recent Appellate Division decision provides municipalities and their police departments’ protection from Open Public Records Act (“OPRA”) litigation for certain records produced by police officers but ultimately maintained by the judiciary through an electronic system.

The plaintiff, a notorious OPRA requestor, filed a complaint against the defendants, a municipality and its police department, under OPRA, seeking copies of DWI/DUI, drug possession, and drug paraphernalia summonses and complaints issued by city police officers.  Defendants asserted there were no records to produce in response to this request, because the requested documents were court records maintained by the judiciary.  The lower court found in favor of the requestor, holding the documents were government records subject to OPRA and within the possession of the police department.  The Appellate Division reversed this decision, recognizing that New Jersey Court Rules concerning public records are separate and unique from the Open Public Records Act. 

The court observed that the creation of a complaint-summons starts with a police officer inputting information into an electronic system created and maintained by the Administrative Office of the Court.  Once completed, the complaint-summons is retained by the municipal court, whose authority falls under the judiciary. The court therefore held that the municipality and its police department are not the custodians of these records, and they could not be compelled to search for and turnover these records in response to an OPRA request.  Just because the municipality and its police officers have access to the record in an electronic system, and even trigger the process of creating the record in the first place, does not mean they are the custodians of the records and obligated to comply with an OPRA request.

Under OPRA, governed records are defined in part as records “made” and “maintained” or “kept on file” by the government agency.  This opinion tells us, when determining whether a document is a government record subject to OPRA, the emphasis is not on how the document is created, but where the document is ultimately stored.  Based on this holding, for now, municipalities and their police departments do not have to produce electronic records generated by police officers but completed and stored in an online system maintained by the judiciary.  Because these scenarios are constantly evolving, it is important for custodians to speak with their OPRA counsel before responding to OPRA requests to ensure that they possess knowledge of any shifts in the law created by the judiciary.

For more information on this issue or other public records questions, please contact Parker McCay’s OPRA team.

Tags: OPRA
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