NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A

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- 17T2 DIGITAL FIRST MEDIA , d/b/a THE TRENTONIAN, Plaintiff

- Appellant,

v. EWING TOWNSHIP and KIM J. MACELLARO, RMC, in her capacity as Municipal Clerk and Re cords C ustodian for Ewing Township, Defendants

- Respondents.

___________________________

Argued May 22, 2019 Before Judges Alvarez and Mawla. Reargued November 21, 2019

– Decided Before Judges Alvarez, Suter and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L

- 0495

- 18. CJ Griffin argued the c ause for appellant (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, of counsel and on the briefs). Wade D onald Koenecke argued the cause for respondents (Stevens & Lee, PC, attorneys; Patrick D. APPROVED FOR PUBLICATION February 19, 2020 APPELLATE DIVISION

February 19, 2020A

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- 17T2 2 Kennedy and Maeve E llen Cannon, of counsel and on the brief; Wade D onald Koenecke and Michael A. Cedrone, on the brief s ). Suzanne Marie Davies, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorn ey; Raymond R. Chance, Assistant Attorney General, of counsel; Suzanne Marie Davies, on the brief). Gibbons PC and American Civil Liberties Union of New Jersey, attorneys for amicus curiae American Civil Liberties Union of New Jersey (Jeanne LoCicero and Alexander Shalom, of counsel and on the brief; S y lvia

- Rebecca Gutierrez, on the brief). Mc Cusker Anselmi Rosen & Carvelli PC, attorneys for amici curiae Reporters Committee for Freedom of the Press (Bruce S. Rosen, on the brief)

. The opinion of the cour t was delivered by ALVAREZ, P.J.A.D. Plaintiff Digital First Media, doing business as the Trentonian, filed a verified complaint and order to show cause under the Open Public Records Act of 2001 (OPRA), N.J.S.A. 47:1A

- 1 to

- 13, and the common

- law right of access to public records, seeking to compel the production of use of force reports (UFRs) regarding the arrest of a sixteen

- year - old suspect. The defendants are Ewing Township and the municipal clerk and records custodian , Kim Macellaro, RMC. Defendants denied access on the basis that the records contained confidential information pertaining to a juvenile charged as aA

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- 17T2 3 delinquent , and were therefore available only by application to the Family Part

. See Rule 5:19

- 2 and N.J.S.A. 2A:4A

- 60. Finding that the rule and statute pre servi ng a juvenile's anonymity barred disclosure under OPRA , the Law Division judge dismissed the complaint on July 18, 201 8

. We now reverse, concluding that when police employ force agai nst a minor charged as a delinquent , redaction of his or her name on the UFR satisfies both the public's right to access important information regarding police conduct and a juvenile's right to privacy , which is mandated by statute and court rule . We rema nd for further proceedings to address the Trentonian's request for counsel fees and costs. As the judge explained, t he legislative policy protecting a juvenile's privacy stems from the concern that public disclosure might "have a harmful impact on the reh abilitation of a juvenile offender." See State ex rel. B.C.L. , 82 N.J. 362 , 375

- 76 (1980). The judge also opined that the juvenile confidentiality statute takes precedence over OPRA under the theory of statutory construction that the specific super s edes the general. See State v. Robinson , 217 N.J. 594, 609 (2014); see also State ex rel. D.M. , 451 N.J. Super. 415, 426 (App. Div. 2017). The public's right to know was a "generalized interest," while the juvenile's need for privacy "comes out in the balance ."A

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- 17T2 4 Further examining the Trentonian's claim under the common

- law right of access, the judge determined that the news paper was not entitled to relief. The judge reasoned that a lthough the public's right to know is a paramount consideration , since the Trentonian had the option of filing a motion in the Family Part to obtain the UFR , a mechanism was available to ad v anc e that interest , while preserving the juvenile 's confidentiality

. The judge also noted only the Juvenile Justice Commission (J JC) ha s

a ccess to a juvenile parole officer's UFR . The JJC , within the Department of Law and Public Safety, 1 adopted N.J.A.C. 13:97

- 1.4, which "tracks" Rule 5:19

- 2 and N.J.S.A. 2A:4

- 60, in order to "strictly safeguard[] " those records

" from public access. " Thus , she enter ed judgment in favor of defendants. I. Some context is necessary. The Attorney General's authority to oversee police conduct is legislatively mandated. See N.J.S.A. 52:17B

- 97 to

- 117. The Attorney General's responsibilities include rep resent ation of S tate agencies. See N.J.S.A. 52:17A

- 4. The Attorney General issu ed use of force guidelines r egulating law enforcement in 1985 and revised them in 2000. The guidelines defined

1 Stating the obvious, the Department of Law and Public Safety is headed by the Attorney General. N.J.S.A. 52:17B

- 5. The JJC "is established in, but not of, the Department of Law and Public Safety." N.J.S.A. 52:17B

- 170(a).A

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- 17T2 5 categories of force. Among other things, police mus t file a one

- page UF R "[i]n all instances when physical, mechanical or deadly force is used [] " during a confrontation between police personnel and a civilian, 2 referred to on the form as the "subject." W e have attached a blank copy of the Attorney General's model UFR to this decision

. B ecause police departments are required by law to file UFRs , the public is entitled to access under OPRA. O'Shea v. Twp. of W. Milford , 410 N.J. Super. 371, 385 (App. Div. 2009). Neither the guidelines nor the model form distinguish between UFRs filed when force is used against minors as opposed to adults. Interested parties can obtain records "pertaining to juveniles charge d as delinquents" only by following the process i n Rule 5:19

- 2 (b):

[R]ecords of the court, Probation Division, and law enforcement agencies pertaining to juveniles charged as delinquents shall be strictly safeguarded from public inspection and have to be made available only pursuant to N.J.S.A. 2A:4A

- 60 to

- 62. Any application for such records shall be made by motion to the court. Read together, t he rule and N.J.S.A. 2A:4A

- 60 establish the limited circumstances in wh ich , by formal motion to the Family Part, an interested

2 Throughout this opinion we use the p hrase "adult UFR" and "juvenile UFR" to distinguish between forms filed when the arrestee is an adult as opposed to a juvenile. The reference, however, is to the same form.A

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- 17T2 6 party may obtain otherwise protected juvenile records from "the court, Probation Division, and law enforcement agencies

. . . . " C onfidentiality can be pierced whe n outweighed by other important interests. Pressler & Verniero, Current N.J. Court Rules , cmt. 2 on R. 5:19

- 2(b) (2020). The statute itself, N.J.S.A. 2A:4A

- 60, sets forth instances in which records may be shared, with whom, and who may attend delinquency hearings. It is noteworthy that, a s set forth in N.J.S.A. 2A:4A

- 60 (f) , "the public's right to be informed" may be weighed more heavily in the balance against a minor's privacy interests and "prospects of rehabilitation" if the minor committed a crime of the first, second, or third degree. State ex rel. K.B. , 304 N.J. Super. 628, 631 (App. Div. 1997); N.J.S.A. 2A:4A

- 60(f). To prevent public disclosure under subsection ( f ) of the statute, the juvenile "must demonstrate a substantial likelihood that specific and extraordinary harm would result from such disclosure in the specific case." K.B. , 304 N.J. Super.
at 631. The minor "must make a showing of significant detriments flowing to the individual that are both sufficiently grave and person

- and situation

particular, i.e. , not shared by juvenile defendants in general." Id

. at 634. This is a difficult test to meet. See id. at 632

- 33.A

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- 17T2 7 Dicta in O'Shea mention s regulations mak ing some UFRs "'confidential' and not subject to OPRA." 410 N.J. Super. at 384. Specifically, pursuant to regulatory powers vested by N.J.S.A. 52:17B

- 170(e)(22), the JJC

has promulgated use

- of

- force policies for its juvenile parole officers, N.J.A.C. 13:96

- 3.1 to

- 11, and for its investigators, N.J.A.C. 13:97

- 2.1 to

- 11, that are similar to the [Attorney General's] Use of Force Policy. Those regulatio ns expressly state that an officer regulated "shall complete a . . . Use of Force Report when he or she participated in, or witnessed, [any use of force]," N.J.A.C. 13:96

- 3.6 and 13:97

- 2.6, but then deem such reports " confidential " and not subject to OPRA. N.J.A.C. 13:96

- 1.4 and 13:97

- 1.4. [ Id. at 384

- 85 (alterations in original) .] II. On appeal, plaintiff argues that redacted UFRs do not come under the purview of the rule and statute regarding juvenile records because they do not "pertain" to the juv enile, but to police conduct. Amici curiae the Reporters Committee for Freedom of the Press and 22 Other Media Organizations agree, and add that public access to UFRs regarding juvenile arrests will better serve the public by providing a measure of clarit y and oversight in this important

arena . The American Civil Liberties Union of New Jersey, which also filed a brief in support of plaintiff's appeal, asserts that allowing access to a juvenile UFR advances OPRA's mandate because of the importance of publi c oversightA

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- 17T2 8 of police conduct

— but that it should have in any event been allowed under the

common - law right of access. Defendants counter that the rule and statute s control because the UFR at issue pertains to juvenile records . They further argue that the complaint was procedurally defective because the request should have been initiated through the Family Part , balanc ing the public's interest in oversight of police conduct while preserving a juvenile's privacy. In its amicus curiae filing, the Attorney Ge neral draws our attention to various agency public statements highlighting the purpose of UFRs to provide transparency regarding law enforcement conduct, not regarding criminal activity. See Gurbir S. Grewal, Joint Statement of New Jersey Law Enforcement Leaders , ( December 5, 2018 ), https://www.nj.gov/oag/newsreleases18/pr20181205b.html ; see also S.P. Sullivan, NJ.com probe of police force 'nothing short of incredible,' N.J.'s top cop says. Now, he's promising major reform , NJ. COM (Nov. 30, 2018), http://www.nj.com/news/2018/11/njcom

- probe

- of

- police

- force

- nothing

- short

of

- incredible

- njs

- top

- cop - says - now - hes

- promising

- major

- reform.html

. Accordingly, t he Attorney General takes the position on appeal that redacting a UFR involving a juvenile subject would readily preserve the minor 's confidentiality and the public's strong interest in transparency. At oralA

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- 17T2 9 argument, we were advised that some municipalities already provide redacted juvenile UFRs when requested. III. We review a tria l court's decisions in OPRA matters de novo. Wronko v. N.J. Soc'y for Prevention of Cruelty to Animals , 453 N.J. Super

. 73, 79 (2018) (quoting Paff v. N.J. State Firem e n's Ass'n , 431 N.J. Super. 278, 286 (App. Div. 2013); O'Shea , 410 N.J. Super. at 379). In North Jersey Media Group, Inc. v. Township of Lyndhurst , the Court reiterated that OPRA embodies the principle of broad access to public records in the public's interest. 229 N.J. 541, 555 (2017) . Limitations are to be construed in favor of transpare ncy , and it is the public agencies that bear the burden of demonstrating, "a clear showing," that denial of the OPRA request is required by law. I bi d. (quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office , 37 4 N.J. Super. 312, 329 (Law Div. 2004)). Government records are accessible to the public under OPRA unless exempted by provisions within the law or application of another statute. N.J.S.A. 47:1A

- 1. A lthough the language in Lyndhurst concerns exemptions to disclosure found within OPRA itself, the re is no reason to distinguish the standard from decisions regarding exemptions found in unrelated statutes. Therefore, it isA

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- 17T2 10 defendant s ' burden to make a clear showing that N.J.S.A. 2 A :4A

- 60 creates an exemption to OPRA

. No showing has been made, much less a clear showing. To begin, Rule 5:19

- 2(b) addresses information "pertaining to juveniles charged as delinquents

. . . . " The statute employs similar language, expanding the universe of records to "be strictly safeguarded from public inspection" to include those pertaining to "juveniles" who are "found to be part of a juvenile

f ami ly crisis

. . . ." N.J.S.A. 2A:4A

- 60. Not all minors against whom police would employ force necessarily fall into those categories. Additionally , t he Attorney General's reading of the interplay between OPRA and the rule and statute, although not dispositive, is more than informative. See Shaw v. Shand , 460 N.J. Super. 592, 617

- 18 (App. Div. 2019). We give it deferential considerati on. Id. at 617. D eference is particularly fit ting in this case since the Attorney General is responsible for issuing "guidelines, directives and policies concerning appropriate application of the State's criminal laws." O'Shea , 410 N.J. Super. at 382. The adoption of the UFR guidelines and the creation of the form was just such an exercise of the Attorney General's oversight

. The UFR promulgated by the Attorney General is designed to capture information about police conduct, not the subject

— the person against whom force was used

— in an abbreviated fashion. That the "subject" is a minor , asA

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- 17T2 11 opposed to an adult, does not shift the focus of a UFR , disclosure of use of force, in any way. In either instance, the need to record police conduct is the same. Deleting the subject's name adequately protect s the anonymity. The remaining information is identity neutral

— and provides details that a id in

assess ing the reasonableness of the officer's conduct: the subject's gender,

race , and age ; whether t he subject was carrying a weapon ; whether t he subject

was injured , killed, or arrested ; and the nature of any charges filed against him or her

. Alt hough the parties , like the trial court, cite to the language in O'Shea

re ga r di n g juvenile parole officers' UFRs, it is not relevant

. JJC regulations apply only to UFRs produced by juvenile parole officers and investigators. The UFRs at issue here are filed by county, municipal, or S tate police; are generally available to the public; and are filed with employers and agencies whose focus is not the arrestee

— rathe r the focus is on the employees' implementation of more broad

- based police practices. The heart of the matter is that a juvenile UFR is not a record pertaining to juveniles charged with delinquency . It is a record pertaining to police conduct. The legisl ative history of N.J.S.A. 2A:4A

- 60, and Governor's statement issued when the stat ute was en ac t ed , both indicate that the provisionsA

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- 17T2 12 regarding confidentiality were intended to balance the public 's right to be informed against the rehabilitation of the juven ile, a balance readily accomplished here by the redaction of the juvenile's name. Senate Judiciary Committee Statement to A. 643 ( L. 1982, c. 79 ) ; Governor's Conditional Veto Message to A. 1913 ( L. 2001, c. 407 )

. Nor does a juvenile UFR fall within the

e xceptions to availability of government record s deemed confidential enumerated with in OPRA itself. See N.J.S.A. 47:1A

- 1. The simple redaction of the subject 's name accomplishes the goal of bo th statutes
. Thus, reviewing the matter de novo, we conclude defendants have not made a clear showing that Rule 5:19

- 2 and N.J.S.A. 2A:4

- 60 bar release of juvenile UFRs. Redaction when the subject is a minor preserves confidentiality while advancing OPRA's public policy goals. H owever, t he At torney General may want to consider the promulgation of a different UFR for use when the subject is a minor , in order to ensure names are not mistakenly released

. We remand the matter for judgment to be entered in accord with this decision. On reman d, the court shall address the issue of plaintiff's counsel fee application and costs, both as to the work completed in the Law Division and on appeal. Reversed and remanded. We do not retain jurisdiction.APPENDIX