Dear Thomas:
The Monmouth County Prosecutor's Office is in receipt of the below public record request. The deadline for our response would normally be today, November 10, 2020, though that 7-business-day deadline currently is relaxed in light of the pandemic and state of public health emergency. N.J.S.A. 47:1A-5(i).

We have encountered a technical problem in generating the arrest report that you requested. I anticipate the problem resolving within the next few days, at which time we will be able to provide you with the responsive, non-exempt records that we have. This email advises that we are invoking 47:1A-5(i)(2) to extend our deadline to Monday, November 16, 2020. In the unfortunate event the delay extends longer than that, I will be back in touch.

Respectfully,
Mary Juliano
Assistant Prosecutor

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Dear Thomas:

This email with attachments responds to the below record request, whose
deadline was extended to today, November 16, 2020.

Driver's license and partial social security numbers have been redacted
from the attachments in accordance with N.J.S.A. 47:1A-5(a).

We do not have a CAD detail that "relat[es] to the arrest of Damien
Broschart in October 2020."  The Affidavit of Probable Cause, which is
provided, describes the progression of events that led to Officer
Brochert’s charges.  As apparent from the attached Arrest Report,
Broschart responded to the prosecutor's office where his arrest was
processed.  We understand your request for CAD detail to be for a report
where Broschart is the arrestee.  Such a CAD does not exist and your
request for it, as we understand it to be, is denied for lack of a
responsive record. 

You requested "investigation report, operations report, incident report,"
again "relating to the arrest of Damien Broschart in October 2020."  Those
sound like different labels that could be given to "police reports."   

We have attached the "Preliminary Law Enforcement Incident Report,"
because it is publicly accessible and appears facially responsive to the
request for "incident report."

As to "investigation" and "operations" reports, we interpret those to mean
"police reports."  Police reports are exempt from disclosure under OPRA
because they are "criminal investigatory records."    N.J.S.A. 47:1A-1.1;
see North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J. 541,
569 (2017) (investigative reports and witness statements about criminal
incident "fall within the 'criminal investigatory exception'"); Serrano v.
South Brunswick Twp, 358 N.J. Super. 356-57, 360, 370 (App. Div. 2003)
(affirming dismissal of portion of complaint regarding non-disclosure of
police and EMT reports, on the ground such documents were "criminal
investigatory records").  The request for “investigation” and “operations”
reports is being denied under the “criminal investigatory record”
exemption. 

We acknowledge that your request for records is "made under OPRA and the
common law right of access."  "[U]nlike a citizen's absolute statutory
right of access [under OPRA], a plaintiff's common-law right of access
must be balanced against the State's interest in preventing disclosure. 
The common law right of access involves a two-step inquiry.  First, a
litigant must establish an interest in the public record.... Once the
first step has been satisfied, then, to gain access, a plaintiff's
interest in disclosure of the relevant documents must outweigh the State's
interest in non-disclosure."  Education Law Ctr v. New Jersey Dep’t of
Educ., 198 N.J. 274, 302-03 (2009) (emphasis added).  

The standard therefore makes clear that, to gain access under the common
law, you must first establish an interest in the requested record(s). 
Your request does not do so.  Your request does not identify who you are,
your status in relation to the requested material, or, more pointedly, any
special interest that you have in the subject matter of the request.  On
the other side of the balance, the criminal matter that is the subject of
your request remains open and at the early, pre-indictment stage as of
this date.  See Keddie v. Rutgers, State Univ., 148 N.J. 36, 54 (1997)
(common law recognizes greater need for confidentiality in pending
matters, as compared to closed cases); North Jersey Media Gp., Inc. v.
Township of Lyndhurst, 441 N.J. Super. 70, 109-10 (App. Div. 2015), rev’d
on o.g., 229 N.J. 541 (2017).  The facts before me, identified above, do
not indicate a right to disclosure under the common law balancing
analysis.

Finally, like the CAD detail above, we understand your request for
investigation/operation reports to be for reports that describe or narrate
investigative events directed at Officer Broschart.  As of this date, said
investigation report remains in draft form and has not been finalized;
therefore, the request for same is denied for lack of a responsive
document.

In the event of a clarification or appeal, this Office reserves the right
to raise any other ground for denial not raised in this response.  Failure
of this Office to assert an exception or privilege at this time should not
be considered a waiver of any grounds for denial.

Respectfully,

Mary Juliano

Assistant Prosecutor

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