Federal Budget for the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS)

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town-crier_facebookThe House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies authored a spending bill to fund the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), U.S. Department of Education (ED) and related independent agencies.

Funding levels proposed by the subcommittee provided $5 billion of cuts across funded agencies including: $1.3 billion cut to DOL, which included a cut to critical workforce programs within their Employment and Training Administration (ETA); $542 million cut to HHS; $2.4 billion cut to ED.  The bill contains clear loses, including: elimination of Title II, Part A funding of the Every Student Succeeds Act (ESSA), which provides funding for professional development for educators, class-size reduction, educator recruitment and retention, and mentoring; reduction of afterschool and summer funding through 21st Century Community Learning Center funding; and significant reductions to workforce education and training programs.

The budget also contains positive news for local programs including rejection of proposed eliminations of key grant programs such as LIHEAP and SSBG, as well as the independent agencies of the Corporation for National and Community Service and the Institute of Museum and Library Science.

The following chart compares funding for key municipal programs in the current (FY ’17) Budget along with funding requests in the President’s proposal, as well as funding authorized in the bills approved by the House Appropriations Committee:

Program FY’17 Budget President’s Proposal FY’18 House Bill
Workforce Innovation and Opportunity Act (WIOA) $3.474 billion $2.133 million $3.042 billion
Charter School Program grants $342 million $509 million $370 million
Individuals with Disabilities Act (IDEA) $12  billion $12 billion $12.2 billion
Low Income Home Energy Assistance Program (LIHEAP) $3.390 billion Eliminated $3.390 billion
Community Service Block Grant (CSBG) $715 million Eliminated $607.5 million
Social Services Block Grant (SSBG) $1.7 billion Eliminated $1.7 billion
Corporation for National and Community Service (CNCS) $1 billion Eliminated $1 billion

Contacts:

  • Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120;
  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org 609-695-3481 x121;
  • Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org 609-695-3481 x112;

Federal Budget for the Department of Justice

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The Department of Justice bill would provide nearly $2.5 billion in funding to support local law enforcement programs. This is $440 million more than the President’s 2018 budget and $140 million more than 2017 appropriations. The bill increases certain local law enforcement programs, including funding for body worn cameras, the Second Chance Act, violence against women activities, drug and veterans’ courts, and mentally ill offenders. It also consolidates the COPS hiring grant program and Byrne JAG program under a single funding stream. However, the House bill cuts vital funding for addiction and recovery programs used to fight the opioid epidemic even more drastically than the cuts proposed by the White House.

The following chart compares funding for key municipal programs in the current (FY ’17) Budget along with funding requests in the President’s proposal, as well as funding authorized in the bills approved by the House Appropriations Committee:

Program FY’17 Budget President’s Proposal FY’18 House Bill
Edward Byrne Justice Assistance Grant (JAG) Program $319 million $239 million Consolidates with COPS and increases to a total $500 million
COPS Hiring Grants $122 million $134 million Consolidates with Byrne JAC and increases to a total $500 million
Body Worn Cameras $21 million $21 million $22.5 million
Second Chance Act (SCA) $59 million $43 million $68 million
Violence Against Women Prevention and Prosecution $481.5 million $480 million $528.5 million
Drug Courts $39 million $37 million $43 million
Mentally Ill Offender Act $9 million $9 million $12 million
Veteran Treatment Courts $5 million $5 million $7 million
Comprehensive Addiction and Recovery Act Activities $19 million $18 million $15 million

Contacts:

  • Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120;
  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org 609-695-3481 x121;

Federal FY2018 Budget: U.S. Department of Energy (DOE) and the U.S. Army Corps of Engineers (Army Corps)

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The bill to fund the U.S. Department of Energy (DOE) and the U.S. Army Corps of Engineers (Army Corps) includes matters important to many municipalities, including the Weatherization Assistance Program, which aims to reduce energy costs for low-income households by improving the energy efficiency of their homes, and funding for the DOE Office of Energy Efficiency and Renewable Energy, which supports programs such as the Better Buildings Challenge and SunShot program aimed at increasing energy savings from buildings and promoting renewable energy generation. While the Weatherization program would receive level funding compared to FY17, the Office of Energy Efficiency and Renewable Energy is facing a proposed cut of $1 billion compared to FY17.

Similar to the Interior-Environment bill, Energy-Water bill also includes a policy rider that would allow the Army Corps to withdraw the 2015 Clean Water Rule without following the requirements of the Administrative Procedure Act and the requirement for public notice and comment period.

The following chart compares funding for key municipal programs in the current (FY ’17) Budget along with funding requests in the President’s proposal, as well as funding authorized in the bills approved by the House Appropriations Committee:

Program FY’17 Budget President’s Proposal FY’18 House Bill
Weatherization
Assistance Program
 $211.6 million  Eliminated  $211.6 million
 Office of  Energy
Efficiency and
Renewable Energy
 $2.1 billion  $636 million  $1.1 billion
State Energy Program $50 million  Eliminated $50 million

Contacts:

  • Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120;
  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org 609-695-3481 x121;

 

Federal FY2018 Budget: U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Interior (DOI)

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Federal Budget for the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Interior (DOI).

The House Appropriations Subcommittee on Interior and Environment passed a spending bill to fund the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Interior (DOI). Funding levels proposed by the committee are mostly good news for key local programs, rejecting cuts to the Brownfields and Superfund cleanup programs, along with regional ecosystem restoration efforts. The bill provides modest cuts to the Clean Water State Revolving Fund and Water Infrastructure Finance and Innovation Act (WIFIA) while maintaining level funding for the Drinking Water State Revolving Fund. Within DOI, the Land and Water Conservation Program takes a hit, but the committee rejected a near elimination of the program.

The bill language also includes a policy rider that would allow EPA to withdraw the 2015 Clean Water Rule (aka “waters of the U.S.”/WOTUS), without following the requirements of the Administrative Procedure Act and the requirement for public notice and comment period. While we have concerns with the 2015 rule and have advocated for a revision, the ability of local officials to participate in the rulemaking process is a fundamental principle of the intergovernmental partnership.

The following chart compares funding for key municipal programs in the current (FY ’17) Budget along with funding requests in the President’s proposal, as well as funding authorized in the bills approved by the House Appropriations Committee:

Program FY’17 Budget President’s Proposal FY’18 House Bill
Clean Water State Revolving Fund $1.393 billion $1.393 billion $1.143 billion
Drinking Water State Revolving Fund $863 million $863 million $863 million
Water Infrastructure Finance and Innovation Act (WIFIA)  $30 million  $20 million $25 million
Brownfields $80 million  $69 million  $90 million
Superfund  $1.089 billion  $762 million  $1.116 billion

Contacts:

  • Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120;
  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org 609-695-3481 x121.

Federal FY2018 Budget: Department of Housing and Urban Development (HUD)

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town-crier_facebookTo assist in reviewing the progress of the Federal FY’18 budget we have prepared separate blog posts on the following departments’ budget.   Here is a break on the Federal Budget for the Department of Housing and Urban Development (HUD)

The Transportation, Housing and Urban Development (T-HUD) bill would reduce Department of Housing and Urban Development (HUD) funding by 1.3 percent, to $38.3 billion, which is a significantly more favorable outcome for municipalities, when compared to the Administration’s proposed 20 percent cut that included the complete elimination of the Community Development Block Grant (CDBG) program, the HOME Investment Partnership Program, and the Choice Neighborhoods Initiative. Still, if the House funding reductions hold, municipalities nationwide will be on the hook to make up for lost federal dollars on a smaller scale. CDBG and HOME would be reduced the $100 million each and Choice Neighborhoods would fall to $20 million, an amount small enough to be considered a “placeholder” amount to keep the program on the budget until more favorable funding levels become available.

The brightest spot in the HUD budget is a small increase for Homeless Assistance Grants. Funding for housing rental assistance would also grow by a slight amount, but not at the same rate as inflation which, along with other factors, could result in an overall loss of more than 100,000 housing vouchers next year.

The charts that follow compare funding for key municipal programs in the current (FY ’17) Budget along with funding requests in the President’s proposal, as well as funding authorized in the bills approved by the House Appropriations Committee.

Program FY’17 Budget President’s Proposal FY’18 House Bill
CDBG $3 billion Eliminated $2.9 billion
HOME $950 million Eliminated $850 million
Choice Neighborhoods $138 million Eliminated $20 million
Tenant Based Rental Assistance $20.292 billion Reduces Rental Assistance Programs by $1.9 billion. $20.487 billion
Project Based Rental Assistance $10.816 billion $11.082 billion
Public Housing Operating Fund $4.4 billion $4.4 billion

Contacts:

  • Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120;
  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org 609-695-3481 x121;

 

 

Two Recent NJ Supreme Court Rulings Help Shape the Tort Claims Act

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town-crier_facebookTwo New Jersey Supreme Court rulings handed down this week have helped shaped the Tort Claims Act (TCA).  The first, Edan Ben Elazar v. Marcietta Cleaners, Inc., dealt with the TCA’s notice-of-claim requirement when dealing with a municipality, or any other public entity for that matter.  Under the TCA, a plaintiff must file a notice-of-claim with a public entity within 90 days of the accrual of the cause of action.  Absent extraordinary circumstances, the failure to file a timely notice-of-claim bars a tort claim against the public entity.

This 90 day period is similar to a statute of limitation, where one must file a tort claim within in given period of time, typically two to three years.  The time limit begins when the claim accrues which in most cases occurs on the same date as the underlying tortious act.  However, there are circumstances where the date of accrual is less clear.  Typically these circumstances include instances where a plaintiff is reasonably unaware that they have sustained an injury or reasonably unaware that the injury was caused by the fault of another.  Under these circumstances, courts have ruled that the shot clock on filing a claim does not begin to tick until the discovery of the injury or the party at fault.  This is what is known as the “discovery rule.”

In Marcietta Cleaners, the Court examined the application of the discovery rule in the context of the TCA’s 90-day notice-of-claim requirement.  The Court found the discovery rule is applicable to the 90-day notice- of claim much like it would apply to a statute of limitation.  In other words, the 90 day period for which a plaintiff must file a notice-of claim or be barred from asserting a claim does not necessarily begin at the time the tortious act occurred.  Instead, the 90 day period can begin much later but only if the failure to discover accrual of a cause of action is reasonable.

This ruling has the potential to open municipalities to claims which occurred months or even years after a potentially tortious incident.  At the very least this ruling could lead to municipalities and other public entities needing to prove that a plaintiff’s failure to discover the accrual of a cause of action was unreasonable.  While this may save public entities from defending a tort claim it would still be very costly to the municipalities and taxpayers.

The second case, Twanda Jones v. Morey’s Pier, Inc., dealt with whether or not a failure to timely serve a notice-of-claim on a public entity bars a defendant from making a cross-claim or third-party claim for contribution and common-law indemnification against the public entity.  The Court ruled that the failure to timely file a notice-of-claim barred a defendant from making any such claims against a public entity.

The Morey’s Pier ruling correctly applies the legislative intent of the TCA to ensure prompt notification to public entities of potential claims against them so that they may remedy the underlying issue to avoid additional injury to others and so that they may plan accordingly for a potential payment of damages.  To paraphrase the Court, if the claimant failed to serve a timely notice-of-claim the TCA’s plain language bars all claims including contribution and indemnification claims from defendants.  “The Legislature did not distinguish between a plaintiff’s claim and a defendant’s cross claim or third-party claim.”

This ruling ensures that a municipality will receive the proper notice-of-claim under the TCA for any claims.  It provides for assurance an attempted claim against a municipality, months or even years later cannot be sustained simply because the claim comes from a defendant rather than an injured party.

You should review this case with your municipal attorney for additional information on how this recent decision will impact your municipality.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x. 137.

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Governor Takes Action on Bills of Interest

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A-222/S-21town-crier_facebook71,New Jersey Library Construction Bond Act” – The Governor signed this legislation, which would authorize, upon voter approval, the issuance of $125,000,000 in general obligation bonds to finance capital projects at public libraries and appropriates $5,000. If approved by the voters in November, this will provide funding for the much-needed construction, reconstruction, development, extension, improvement, and furnishing of New Jersey’s public libraries.  Specifically, for any approved project financed by bond proceeds, the grant award will support 50% of the cost of the project, and the appropriate local governing entity in the area served by the public library will support 50% of the cost of the project. The League supported this legislation which will be on a statewide public question on the November ballot.

A-3749/S-2114, allows “100 percent Disabled Veterans” to receive parking privileges reserved for persons with disability.  P.L. 2017, c.166 permits a military veteran who is designated as “100 percent Disable Veteran” by US Department of Veterans Affairs to park a motor vehicle in parking spaces reserved for persons with disability with a placard from the Motor Vehicle Commission (MVC).   Instead of being required to submit an application signed by a medical professional certifying that the person qualifies to receive disability parking privileges the veteran can submit a statement from the Department of Veterans Affairs certifying that they are 100 percent disabled.  The law will take effect February 1, 2018.

S-2883/A-4537, extends eligibility for veterans’ property tax deduction and disabled veterans’ property tax exemption to members of the United States Armed Forces assigned to the rescue and recovery mission at the World Trade Center between September 11, 2001, and May 30, 2002 by revising the definition of “active service in time of war”.    P.L. 2017, c. 134 specifically requires that a member of the United States Armed Forces must have served on the pile of rubble that resulted from the attacks on the World Trade Center in direct support of that rescue and recovery effort for a period, continuously or in the aggregate, of at least 14 days in such active service commencing on September 11, 2001 and ending on May 30, 2002.  It would also require that any person receiving an actual service-incurred injury or disability while engaged in such service shall be classed as a veteran whether or not that person completed the required 14 days’ service.  This law took effect on July 21, 2017.

A-1645/S-195 expands the definition of “acquisition,” for purposes of county and municipal open space trust funds, to include demolition, removal of debris, and restoration of lands being acquired.  P.L. 2017, c. 154, which the League supported, would amend the definition of “Acquisition” or “Acquire” to include the demolition of structures on, the removal of debris from, and the restoration of those lands to a natural state or to a state useful for recreation and conservation purposes.  This law took effect on July 21, 2017.

S-3242/A-4997 clarifies procedures for approval of environmental and transportation infrastructure projects. P.L. 2017, c. 144.   This new law made certain changes so to make the use of terms consistent with the environmental financing program and the transportation financing program to be administered by the New Jersey Environmental Infrastructure Trust, as well clarifying procedures, and assure that all funding is used for its intended purposes. This law took effect on July 21, 2017.

S-2834/A-4569  the “Water Quality Accountability Act”; imposes certain testing, reporting, management, and infrastructure investment requirements on water purveyors.  P.L. 2017, c. 133 imposes certain testing, reporting, management, and infrastructure investment requirements on water purveyors, defined as any person that owns a public water system with more than 500 service connections. This law will take effect on October 19, 2017.

S-5/A-4925 establishes data reporting requirements for emergency medical services providers and dispatch centers.  P.L. 2017, c. 116. Under the new law, each EMS provider that provides pre-hospital emergency medical care to patients in the state – including basic life support ambulance services, mobile intensive care units, air medical services and volunteer and non-volunteer first aid, rescue and ambulance squads – will be required to report to the Department of Health (DOH) certain information concerning each incident in which the entity provides emergency medical services. he DOH will be required to furnish to EMS providers and dispatchers, without charge, any software or programs developed by the DOH for accessing and using the electronic reporting system. This law will take effect on January 17, 2018.

S-742/A-1205 requires the board of education that is equipped with video surveillance that is capable of streaming live video wirelessly to a remote location to enter into a memorandum of understanding (MOU) with law enforcement authorities regarding access to live video streams of public school buildings.  P.L. 2017, c. 119 requires that the MOU must include the designation of individuals authorized to view the live streaming video; the circumstances under which the designated individuals would view live streaming video; and a detailed plan for preventing and detecting unauthorized access to live streaming video.  If neither party can reach agreement on any of the provisions of the MOU the county prosecutor is responsible for making the final determination.  If there is no municipal police department the board of education must enter into a MOU with an entity designated by the Superintendent of the State Police.  While this law took effect on July 21, 2017, the board of education has until January 17, 2018, to enter into a MOU.

S-2452/A-4007 requires the Director of Division of Taxation to promulgate Property Taxpayer Bill of Rights that sets forth in simple and nontechnical terms the specific rights of every property taxpayer to understand their real property assessment and to appeal an assessment that a taxpayer believes is too high.  The Property Taxpayer Bill of Rights must be posted on every county board of taxation and municipality’s website.  This law took effect on July 21, 2017.

S-3027/A-4631 establishes State food waste reduction goal of 50 percent by 2030.  P.L. 2017, c. 136 requires the Department of Environmental Protection (DEP), in consultation with the Department of Agriculture (DOA) to develop and commence implementation of a plan to accomplish the 50 percent State food waste reduction goal. This law took effect on July 21, 2017.

A-621/S-2328 permits bowling alleys, including alleys licensed to sell alcoholic beverages, whose premise includes no less than 16 USBS sanctioned bowling lanes and no less than 40 amusement games to conduct amusement games provided that all other requirements for Legalized Games of Chance are met.  P.L. 2017, c. 152 limits the number of mechanical claw games and requires the redemption center to be open at all times that the facility is open to the public.  This law took effect on July 21, 2017.

BILLS VETOED:

A-4587/S-2574)  the Governor vetoed this legislation, which would have extended the State sales and use tax and hotel and motel occupancy fee to transient accommodations; and, authorizes various municipal taxes and fees on transient accommodations.  In his veto message the Governor noted that he does not “support levying new taxes” and could not sign a bill “increasing taxes on our citizens and, most particularly, our tourism areas.”  The League, which supported the legislation, disagrees that the legislation would enact a new tax. It was the logical extension of the existing statutes providing tax parity in the accommodation market place by taking into account the sharing economies and appropriately provides additional revenues for municipalities.

S-1297, 1990/A-3751 which permits candidates for school board to circulate petitions jointly and be bracketed together on the ballot; permits short nonpolitical designation of principles on petitions and ballots, was conditionally vetoed by the Governor.  The Governor expressed his concern that joint petitions and bracketing may inject partisan politics into the school election.  Therefore, the Governor has proposed a 3-year limited pilot program in which one district in each county in which the candidates could circulate petitions jointly or be bracketed together.  At the end of 3 years, a study to review the impact of bracketing school board members on the ballot, any additional costs and whether partisan politics has been injected into the election must be conducted.

A-3480, 4119/S-2536  which amended the New Jersey’s Law Against Discrimination (NJLAD) to prohibited employers from requesting salary history information from prospective employees, without exception, was vetoed by the Governor.  In his veto message the Governor noted that he shared the sponsors’ concern with wage discrimination, however, that this bill “encompasses much more than discriminatory conduct” and could not sign a bill that “fails to align with not only the purpose but also the other provisions of the law it seeks to amend”.

A-4496/S-2977 the “Healthy Small Food Retailer Act”; provides funding to small food retailers to sell fresh and nutritious food; appropriates $1 million was conditionally vetoed by the Governor. The Governor’s explanation for his action stated that ‘’…there are at least five State programs which focus on the same objectives ….’’ His recommendation is that the Legislature should direct the Health Commission to review existing programs and recommend re-allocation of funding.

Contacts: 

Michael Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120.

Jon Moran, Sr. Legislative Analyst, jmoran@njslom.org, 609-695-3481 x121.

Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

 

 

FCC Committee Holds Meeting on Broadband Deployment

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Yesterday, the Broadband Deployment Advisory Committee (BDAC) met to discuss the progress their working groups have made on creating model codes at the state and municipal levels, as well as to discuss more generally the barriers to broadband deployment.  If you have been following this issue you are aware that Federal Communication Commission (FCC) created the BDAC and tasked it with examining current barriers to broadband deployment and making recommendations to the FCC on how to best overcome these barriers to accelerate the deployment of broadband throughout the country.

While the Committee has yet to conclusively identify what the barriers to deployment are, the discussions alluded to a potential few.  One sentiment that was echoed by nearly all members of the working group, which is made up nearly exclusively from industry participants, is that the variety of regulations amongst local governments is by far the biggest obstacle to widespread broadband deployment.  Some committee members even went as far as to advocate for the FCC to step in and overrule the local governments by creating a set of nationwide standards for municipal permitting procedures and Right of Way (ROW) access, at least when broadband deployment is concerned.

A second potential barrier discussed concerned the fees and stipulations utility companies have instituted on pole access.  While addressing their potential to be labeled as a barrier, a committee member representing electricity providers servicing rural areas made note that a few of the suppliers she represents have offered pole access free of charge if a broadband provider wanted to come to those rural towns and provide broadband.  Not a single provider took advantage of these offers.  If the broadband providers were indeed seeking their stated altruistic goal of providing everyone with broadband service surely they would have eagerly pursued this opportunity.  The fact that they did not speaks for itself.

This meeting is a foreshadowing of what is to come – rulemaking by the FCC that would take all power from local governments to control their ROW and other permitting.  The most concerning part of this entire process is the limited voice given to local government in contrast to the heavy involvement of industry participants.

The industry is seeking to deploy its services in the most inexpensive way it can, by forcing local governments to give them access to municipal ROW and disregarding legitimate concerns of municipalities and taxpayers.  While providing broadband access to everyone is a worthwhile goal it should not be accomplished through the means suggested.  Each municipality is unique and the local governments are in the best position to know what needs to be done to protect the health, safety, and welfare of their residents.   Allowing a one-size-fits-all approach at a national or even statewide level for broadband deployment is, in essence, making the determination that the deployment of broadband trumps these concerns.

The BDAC’s will meet again in the fall to review the municipal and state model codes currently being prepared by their respective working groups.  Along with these model codes, the working groups hope to provide an explanatory document which will discuss the thought process and reasoning used in their development.  We eagerly await the model codes and the explanatory documents which will likely be developed strongly in favor of the industry participants, given their strong presence in the committee.  To view a list of the BDAC members please click here and to see a list of the member of each model code working group please click here.  You can view a recording of the BDAC meeting here.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x137.

NJ Supreme Court Narrows Scope of OPRA Exemption

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On July 11, 2017, the NJ Supreme Court issued a unanimous decision in North Jersey Media Group, Inc., v. Township of Lyndhurst, et al.  This case attempts to provide clarification to the scope of the ‘criminal investigatory record’ and ‘records of investigations in progress’ exemptions to the Open Public Records Act (OPRA).  In addition to providing clarification on these OPRA exemptions, this case also touched upon the common law right of access.

In its opinion, the Court ruled against Lyndhurst.  Finding that, Lyndhurst must disclose unredacted Use of Force Reports (UFR) under OPRA and must disclose the footage of the deadly police shooting captured by the police cruiser’s dash camera under the common law even though the Court found that the dash camera footage did in fact fall under the investigatory record exemption in OPRA and would be subject to nondisclosure

The case involved two newspapers’ request for records pertaining to a deadly police involved shooting.  Citing authority under OPRA and the common law right to access, North Jersey Media Group (NJMG), brought suit against Lyndhurst after the town refused to provide footage captured by a police cruiser’s dash camera and the unredacted Use of Force Reports (UFR), showing the names of the officers involved in the shooting.   Lyndhurst maintained that both the disclosure of the fully unredacted UFRs and the dash cam footage were exempt under OPRA as these records were being used in an ongoing criminal investigation and record of an investigation in progress.  Additionally, Lyndhurst argued that these records were also exempt from disclosure under the common law right to access as the State’s interest in preventing disclosure outweighed the public’s interest in the records.

In a response to this ruling, Glenn A. Grant, Acting Administrative Director of the Courts issued a Directive to all assignment judges.  The Directive set forth best practices for handling common law right of access request for dash camera footage in fatal police shootings.  The Directive instructed assignment judges to treat these types of requests as “expeditiously as the court would address a sensitive OPRA filing.”

A short explanation of the Court’s reasoning for its decision is provided below.

Use of Force Reports (UFR)

In its ruling the Court determined that UFRs must be disclosed under the authority of OPRA.  The Court reasoned that the Attorney General’s Use of Force Policy, which requires all police forces in the state create UFRs, is in effect a government record as it is required by law to be made.  The Court therefore found that Lyndhurst, or any other government entity for that matter, could not rely on the ‘criminal investigatory record’ exception to withhold the disclosure of UFRs because UFRs were a record “required by law to be made.”

Likewise, the Court ruled that Lyndhurst could not avail itself of the ‘ongoing investigation’ exception to OPRA.  The court reasoned that while typically records are exempt from disclosure if they would be inimical to the public interest, in this case the UFRs contained relatively limited information.  Furthermore, the Court found that the safety concerns proffered by Lyndhurst as its reasoning for redacting the officer’s names were merely general and under the circumstances do not raise to the level needed to allow for nondisclosure.

While the Court ruled that the names of the officers must be disclosed, it did sympathize with the argument made for withholding those names.  The Court, however, reasoned that it is limited only to interpreting the current law which requires disclosure.  The Court explained that the law allowing for nondisclosure would need to come from the legislature.

Dash Camera Footage

The Court ruled that dash camera footage must be released under the common law right to access, not OPRA.  The Court determined that the public has a strong interest in a police shooting that involved a citizen and that the strong public interest outweighed the police’s interest in preventing disclosure.    The Court reasoned that in the case of dash camera footage of deadly police shootings, when the footage does not place potential witnesses and informants at risk nor undermine the integrity of the investigation that the public interest in disclosure outweighs the police interest in withholding.

We believe it is unclear whether or not the same strong public interest which tilted the scales to disclosure would apply to dash camera footage in cases that do not involve deadly police shootings.  This is perhaps something that will need to be determined on a case-by-case basis.  It is also yet to be seen how this ruling will affect request for other police camera footage, such as body cameras and in different circumstances (i.e. road stop, routine patrol).

Although moot because disclosure to the footage was allowed under the common law, the Court also took the opportunity to examine whether dash camera footage is exempt from disclosure under the criminal investigatory record exemption to OPRA.  Siding with Lyndhurst, the Court found that the dash camera footage did in fact fall under the investigatory record exemption and would be subject to nondisclosure.   The Court reasoned that, while dash camera footage was a record created at the earliest stages of a criminal investigation, it was a record nonetheless and therefore entitled to the OPRA exemption.

The Court taking the opportunity to address the interplay of OPRA and dash camera footage provides a silver lining to this otherwise disappointing ruling.  That silver lining being that because the access to dash camera footage is exempt from disclosure under OPRA and only available under the common law right to access, the fee shifting of the costs of suit does not apply.  That is because generally, only under OPRA can a requester recover for the costs incurred when successful in a suit to compel disclosure.  No such fee shifting is applicable in suits seeking disclosure under the common law.

We suggest that you review this ruling with your municipal attorney, police chief and records custodians to address the changing scope of the OPRA exemption and the common law right to access.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x. 137.