Mr. Moore,

This correspondence shall serve as Nutley Township (the “Township”)’s 
response to your request for access to government records pursuant to the 
Open Public Records Act, N.J.S.A. 47:1A-1.1, et seq. (“OPRA”), which was
sent on Saturday, October 17, 2020 and received on Monday, October 19,
2020 during the Township’s regular business hours.  Below are the
Township’s responses to each said request. 

“I seek all records of all police employee’s [sic] that were indiscipline
[sic] for the past twenty years.” New Jersey Attorney General Gurbir S.
Grewal released Law Enforcement Directives 2020-5 and 2020-6, on June 15,
2020 and June 19, 2020, respectively, ostensibly in response to recent
events involving excessive use of force by police officers outside the
State. Directive 2020-5 requires law enforcement agencies to publish brief
summaries each year of which officers received major disciplinary
sanctions, and to issue their first report by the end of 2020. Directive
2020-6, which does not apply to the Township, requires three agencies in
the Department of Law and Public Safety – the Division of State Police,
the Division of Criminal Justice, and the Juvenile Justice Commission – to
publish summaries of which officers received major disciplinary sanctions
for each year going back to 2000. The information required to be released
pursuant to Directive 2020-5 is to be published on the agency’s website
periodically, but not less frequently than once per year, and is not
required to contain historical information. Shortly after the release of
Directives 2020-5 and 2020-6, various organizations representing active
and retired police officers in the State filed suit to block the
Directives. On October 16, 2020, the New Jersey Appellate Division issued
a published opinion upholding the Directives and permitting the release of
officer disciplinary information. The plaintiffs immediately sought leave
to further appeal with the New Jersey Supreme Court. In connection with
the ongoing appeal, on October 19, 2020, the Attorney General wrote to the
Clerk of the Supreme Court indicating that he would not order the release
of police officer disciplinary information until a decision by the Court
upholding the Directives or November 30, 2020, whichever comes first.
Because Directive 2020-6 does not apply to the Township and because
Directive 2020-5 does not require the release of historical police officer
disciplinary information, and only requires prospective disciplinary
information to be posted to the Township Police Department’s website, your
request for historical police officer disciplinary information for the
past twenty (20) years is denied. Moreover, in light of the Attorney
General’s October 19, 2020 letter staying the Directives, the Township is
not required to release any police officer disciplinary information at
this time.

To the extent that you have also requested access to the above government
records under the common law, your stated interest in obtaining the
records must be balanced against the Township of Nutley’s interest in
nondisclosure.  See Loigman v. Kimmelman, 102 N.J. 98 (1986).  The
foregoing response to your request for access to government records
incorporates the aforementioned balancing test.  Please note that "a
party's status as a litigant does not enlarge its access to government
records under OPRA”.  MAG Entm't, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 545-46 (App. Div. 2005).  The Township of
Nutley reserves the right to raise any other grounds for denial not raised
in this response.  Failure of the Township of Nutley to assert an
exemption or privilege does not act as a waiver of any grounds for denial.
 Furthermore, a reviewing Court or the Government Records Council ("GRC")
may deem a denial of access to be authorized on grounds other that those
advanced by a custodian.  See Paff v. Twp. of Plainsboro, A-2122-05T2,
2007 WL 957289, at *2 (App. Div., Apr. 2, 2007), affirming, Paff v.
Township of Plainsboro, GRC Complaint No. 2005-29 (March 2006).  If your
request for access to a government record has been denied or unfilled, you
have a right to challenge the decision by the Township of Nutley to deny
access.  At your option, you may either initiate a proceeding in the
Superior Court of New Jersey or file a complaint with the GRC by
completing the Denial of Access Complaint Form.  You may contact the GRC
by toll-free telephone at 866-850-0511, by mail at P.O. Box 819, Trenton,
NJ, 08625, by e-mail at [1][email address], or on its website at
[2]www.state.nj.us/grc.  The GRC can also answer other questions about the
law.  All questions regarding complaints filed in Superior Court should be
directed to the Court Clerk in your County.

Sincerely,

Ceci Tramontana, RMC

Deputy Municipal Clerk

Municipal Clerk’s Office

Township of Nutley, NJ

(973) 284-4951 x2233 Office

(973) 284-5668 Fax

[3]www.nutleynj.org

References

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