On April 9 Governor Murphy signed into law legislation that would require ballot drop boxes at certain locations under certain circumstances. Specifically, P.L. 2021, c. 44 would require at least one ballot drop box beginning with the 2021 General Election at any county government building that is the main office of the County Clerk, in each municipality with 5,000 or more residents, at the main campus of each State College or Universities and at the main campus of each independent four-year college or university with enrollments larger than 5,000 students. If two or more ballot drop boxes are separated by a distance of less than 2,000 feet the Board of Elections must determine a secondary location in the same municipality but a different location. Whenever possible at least one ballot drop box must be located in a municipality with an average per capita income or a median family income at or below 250% of the federal poverty guideline.

The White House released specifics of the $2 trillion American Jobs Plan legislative proposal that focuses on roads and bridges; public transportation; resilient infrastructure; drinking water; housing; broadband; caregiving; manufacturing; home energy; clean energy jobs; and veterans’ healthcare. A state-by-state Fact Sheet was released today and shows the current state of New Jersey’s infrastructure.

This week the New Jersey Appellate Division issued a published opinion in Gannett Satellite Information Network LLC, d/b/a Asbury Park Press v. Township of Neptune, a case which the League joined as amicus.   This case involved a request made under the Open Public Records Act (OPRA) and the common law for the disclosure police internal affairs files.  After Neptune Township denied the request under both OPRA and the common law, Gannett commenced legal action to compel disclosure.

The trial court determined that the records were exempt from disclosure under OPRA, but Gannett was entitled to the records under the common law.  The court also awarded Gannett attorney’s fees, based on its decision that disclosure was required under the common law.   Gannett appealed the trial court’s determination that police internal affairs records are not subject to disclosure under OPRA, and Neptune Township appealed the trial court’s determination to allow disclosure under the common law, along with the award of attorney’s fees.

The Appellate Panel affirmed the trial court’s determination that police internal affair files were not subject to disclosure under OPRA, along with the trial’s ruling finding Gannett was entitled to access to the police internal affairs.  The Appellate Panel reached this decision after it was concluded that the lower court correctly applied the proper balancing test to the specific facts of the case. 

The Panel however, did find that the trial court erred in awarding attorney’s fee to Gannett.  The Panel noted that while attorney’s fees can be awarded in a case in which a party seeks access to public records under the common law, the trial court nonetheless erred as a matter of law in awarding attorney’s fee to Gannett in the matter at hand.

In determining the issue the Appellate Panel determined that Neptune advanced good faith arguments to support its determination that police internal affairs records should not be disclosed.  It further rejected the notion that Gannett would be entitled to attorney’s fees under a “catalyst theory” because the records were never released by Neptune in response to the legal challenge.  Ultimately, the records were released by the Attorney General, who was not a party to the case.

At this time it is unclear whether this decision will be appealed to the New Jersey Supreme Court, and if so whether the Court will grant review or not.  You should review this decision with your municipal attorney and records custodian for more information. 

The League would like to thank Carl Woodward, Esq. of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, who represented the League along with the New Jersey Institute of Local Government Attorneys, for their tremendous work on this matter.      

Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org or 609-695-3481 x 137.