Dear Thomas:

This email with attachments responds to the below record request, whose
deadline is November 30, 2020.

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

Redaction to Preliminary Law Enforcement Incident Reports (PLEIRs) are in
accordance with N.J.S.A. 47:1A-9 and Executive Order 26 ¶ 4(b) (McGreevey
2002), as well as to protect personal privacy in accordance with N.J.S.A.
47:1A-1.

You requested "investigation report, operations report, incident report
relating to the arrest of William Tartis." 

We have attached the PLEIRs because they are publicly accessible and
appear 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.

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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