                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2523-14T1

NORTH JERSEY MEDIA GROUP, INC.,

     Plaintiff-Respondent,             APPROVED FOR PUBLICATION

v.                                          June 11, 2015

                                         APPELLATE DIVISION
TOWNSHIP OF LYNDHURST, HELEN
POLITO, RMC, in her capacity
as the Custodian of Records for
the Township of Lyndhurst,
BOROUGH OF NORTH ARLINGTON,
KATHLEEN MOORE, in her capacity
as the Custodian of Records for
the Borough of North Arlington,
BOROUGH OF RUTHERFORD, MARGARET M.
SCANLON, RMC, in her capacity as
the Custodian of Records for the
Borough of Rutherford, BERGEN
COUNTY POLICE DEPARTMENT, CAPTAIN
UWE MALAKAS, in his capacity as
Custodian of Records for the
Bergen County Police Department,
NEW JERSEY STATE POLICE and
SERGEANT HARRY ROCHESKEY, in his
capacity as Custodian of Records
for the New Jersey State Police,

     Defendants-Appellants.
______________________________________

         Argued April 21, 2015 – Decided June 11, 2015

         Before Judges Messano, Ostrer and Sumners.

         On appeal from an interlocutory order of the
         Superior Court of New Jersey, Law Division,
         Bergen County, Docket No. L-19048-14.
Jeffrey S. Jacobson, Director, Division of
Law, argued the cause for appellants New
Jersey State Police and Sergeant Harry
Rocheskey (John J. Hoffman, Acting Attorney
General, attorney; Mr. Jacobson and Raymond
R. Chance, III, Assistant Attorney General,
of counsel; Daniel M. Vannella, Deputy
Attorney General, on the briefs).

Richard J. DiLascio, attorney for appellants
Township of Lyndhurst and Helen Polito,
joins in the brief of appellants New Jersey
State Police and Sergeant Harry Rocheskey.

Rubenstein, Meyerson, Fox, Mancinelli, Conte
& Bern, P.A., attorneys for appellants
Borough of North Arlington and Kathleen
Moore, join in the brief of appellants New
Jersey State Police and Sergeant Harry
Rocheskey.

LaPorta & LaPorta, attorneys for appellants
Borough   of  Rutherford  and   Margaret  M.
Scanlon, join in the brief of appellants New
Jersey State Police and Sergeant Harry
Rocheskey.

Julien X. Neals, Bergen County Counsel,
attorney for appellants Bergen County Police
Department and Captain Uwe Malakas, joins in
the brief of appellants New Jersey State
Police and Sergeant Harry Rocheskey.

Samuel J. Samaro argued the cause for
respondent North Jersey Media Group Inc.
(Pashman  Stein   and  Jennifer  A.  Borg,
attorneys; Mr. Samaro and Ms. Borg, of
counsel; Mr. Samaro and CJ Griffin, on the
briefs).

American   Civil  Liberties  Union  of   New
Jersey, attorneys for amicus curiae American
Civil Liberties Union of New Jersey (Edward
Barocas, Jeanne LoCicero and Iris Bromberg,
on the brief).




                     2                         A-2523-14T1
           Loccke, Correia & Bukosky, attorneys for
           amicus   curiae  State   Troopers Fraternal
           Association and Bergen County Policemen's
           Benevolent Association Conference (Michael
           A. Bukosky, on the brief).

           The opinion of the court was delivered by

OSTRER, J.A.D.

       This appeal, by leave granted, concerns the public's right

to access records pertaining to a criminal investigation under

the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and

the    common   law   right   to   inspect   government   records.     The

Attorney General — on behalf of three municipalities, the Bergen

County Police Department, the New Jersey State Police (NJSP),

and their records custodians — appeals from the trial court's

order compelling disclosure pursuant to both OPRA and the common

law.     Having reviewed the State's arguments in light of the

record and applicable principles of law, we conclude the trial

court    misinterpreted       OPRA's   provisions   governing   criminal

investigatory records.         The court also erred in declining to

consider the State's proposed ex parte showing of why releasing

certain requested documents would undermine its investigation

and be inimical to the public interest.         As a result, we reverse

the court's order compelling release of the requested documents,

and remand for reconsideration in light of the principles we set

forth below.




                                       3                         A-2523-14T1
                                          I.

      Plaintiff       North    Jersey    Media       Group,    Inc.       (NJMG)    is   the

owner    of    numerous       print     and       web-based     news      organizations,

including The Record, a general circulation daily newspaper, and

the South Bergenite, a weekly community newspaper.                                Reporters

for   these    two    publications       sought       various       records   of    local,

county, and state law enforcement agencies (LEAs) pertaining to

the fatal police shooting of a criminal suspect, Kashad Ashford.

The shooting followed a high-speed chase of Ashford and his

passenger Jemmaine T. Bynes across multiple municipalities.

      The     records     custodians          of    the   LEAs      did     not    respond

consistently.         None provided documents before NJMG filed its

November 3, 2014, complaint.                  Thereafter, NJMG received 9-1-1

call recordings, various redacted police documents containing

computer      aided   dispatch        (CAD)       reports,    and    a    uniform     force

report (UFR).1        However, the defendants continue to deny access

to many other requested documents, or to even acknowledge they

exist.




1
   At oral argument, the Director of the                             Division of Law
represented that a further search of the LEAs'                       files uncovered a
UFR, which the State disclosed the preceding                         week.   The State
did so pursuant to O'Shea v. Township of West                        Milford, 410 N.J.
Super. 371 (App. Div. 2009). The document is                         not in the record
before us.



                                              4                                    A-2523-14T1
      The events leading to the fatal shooting are set forth in a

September    16,    2014,      press    release       of   the   Attorney    General's

Office    (OAG);     a    December     9,     2014,     certification    of       Cortney

Lawrence, the NJSP's lead detective in the Attorney General's

Shooting Response Team (SRT) investigation; and a December 10,

2014, certification of New Jersey Division of Criminal Justice

(DCJ)      Lieutenant         Robert         McGrath,       Detective       Lawrence's

supervisor.2        A North Arlington resident called 9-1-1 at 2:12

a.m. on September 16 to report an attempted burglary of her

vehicle from her driveway.             A North Arlington patrol vehicle was

dispatched to the scene to interview the resident.                          Meanwhile,

additional      officers       from    the       police    departments       of    North

Arlington, Lyndhurst, Rutherford, and Bergen County joined the

investigation       into      the   attempted       burglary.3       Officers        soon

spotted    an   SUV      matching      the    information        provided.        Police

determined the SUV was stolen.

      Police attempted to perform a motor vehicle stop, but the

driver, later identified as Ashford, refused.                      Instead, Ashford

led      officers        on    a    high-speed          chase     through         several

2
   Det. Lawrence's statement was based on the detective's
"review[] [of] all the evidence and investigative materials in
the related file."   Lt. McGrath did not specify the basis for
his "understanding" of the events leading to the shooting.
3
  Lt. McGrath stated that NJSP officers also were involved in the
investigation although he did not specify when that occurred.



                                             5                                A-2523-14T1
municipalities.     At one point, Ashford attempted to ram a police

vehicle head-on.          He later crashed into a guardrail on Ridge

Road at Route 3 in Lyndhurst.

       The press release and the detective's certification present

different versions of what happened next.                   According to the

press release, more than one officer fired upon Ashford after he

spun his tires and allegedly backed his SUV at the officers,

ramming a police vehicle.4          Det. Lawrence's certification issued

nearly three months later was less definitive.                     The detective

stated Ashford and Bynes revved the engine "as if to force their

way out"; police had surrounded the vehicle; and ultimately,

Ashford    was   shot   and     killed.       The   detective   did   not    assert

Ashford    backed   up,    or   rammed    a    police   vehicle,    nor   did     the

detective state how many officers shot at Ashford.5




4
    The press release states:

            Police positioned their vehicles around the
            SUV in an attempt to apprehend the vehicle's
            occupants, but the driver put the car in
            reverse, spinning the tires of the vehicle
            until the roadway was filled with smoke.
            The driver allegedly backed the SUV at the
            officers,   ramming   a    police   vehicle.
            Officers fired upon the driver of the SUV,
            striking him.
5
  Det. Lawrence certified: "Even after becoming stuck in the
wall, the suspects revved their engines at high RPM, as if to
force their way out.     Police vehicles and law enforcement
                                                   (continued)


                                          6                                 A-2523-14T1
      Ashford       was    fatally        shot    at    around      2:27     a.m.,    and

pronounced dead at a nearby hospital at 7:05 a.m.                              Officers

found   a     .357-caliber       Magnum     handgun     and     a   facemask    in    the

vehicle.       Bynes      was    arrested    at   the    scene      and    charged   with

weapons     offenses       and    receiving       stolen      property.        The    SRT

immediately assumed control of the investigation.                          According to

released      CAD   reports,       NJSP     investigators        began     interviewing

officers that morning.

      Following the shooting, The Record reporter Abbott Koloff

and   South    Bergenite        reporter    Meghan      Grant    submitted     separate

requests under OPRA and the common law regarding the incident.

On September 16, 2014, Koloff asked Lyndhurst, North Arlington,

Rutherford, and the Bergen County Police Department to produce:

              1.   Incident Reports, Operation Reports,
              Investigation    Reports,   and/or    Offense
              Reports (including supplemental reports);

              2.   Log book notations, daily activity
              logs, daily bulletins, daily statistical
              sheets, tally sheets, vehicle logs;

              3.   Audio recordings, and if available,
              written transcripts of such audio recordings
              of all police and law enforcement dispatches
              and recorded conversations including all 911
              calls;




(continued)
vehicles positioned around the suspects' vehicle.     Ultimately,
driver Kashad Ashford was fatally wounded by gunshot."



                                             7                                  A-2523-14T1
         4.   Arrest reports for individual(s) in the
         incidents;

         5.   All   information   required  to   [be]
         released by law enforcement under Section
         3(b) of the New Jersey Open Public Records
         Act, N.J.S.A. 47:1A-3(b) where (i) an arrest
         has not yet been made; and (ii) where an
         arrest has been made;

         6.      Use of force reports;

         7.   Audio and Video recordings from the
         mobile recorders (MVRs) in the vehicles of
         law enforcement personnel;

         8.   Motor Vehicle Accident         Reports,   Crash
         and Investigation Reports;

         9.      Computer Aided Dispatch reports;

         10.     Mobile Data Terminal Printouts (MDTs).

The same day, Koloff requested the following records from the

State Police:

         1.   use   of   force    report[;]   2.   audio
         recordings of law enforcement dispatches and
         recorded conversations including 911 calls;
         3. audio and video recordings from mobile
         recorders   (MVRs)    in    vehicles   of   law
         enforcement personnel; 4. computer aided
         dispatch reports[;] 5. arrest reports[;] 6.
         Motor Vehicle Accident Reports, Crash and
         Investigation    Reports[;]      7.    incident
         reports, operation reports, investigation
         reports   and  offense     reports   (including
         supplemental reports)[.]

    Grant's     September   17,   2014,   request   asked   Lyndhurst   to

disclose the following documents "as they are created":




                                    8                            A-2523-14T1
            -All police reports concerning the Sept. 16,
            2014 pursuit of suspects later identified as
            Kashad Ashford and Jemmaine Bynes.

            -All use of force                reports by         Lyndhurst
            officers concerning              the Sept.          16, 2014
            shooting.

            -Any additional documentation kept by the
            Lyndhurst Police Department concerning the
            Sept. 16, 2014 pursuit of suspects later
            identified as Kashad Ashford and Jemmaine
            Bynes and shooting.

            -Any video tape (or a transcription of the
            video tape) obtained during the course of
            the investigation into the Sept. 16 pursuit
            and shooting.

    Although the responses varied, none of the LEAs' records

custodians produced responsive documents before NJMG filed its

complaint.       Lyndhurst's records custodian denied both reporters'

requests    on    September      25,   2014,       based   on   the   OAG's    ongoing

investigation.         Before doing that, the custodian had referred

the records request to OAG, which referred it back to Lyndhurst.

North Arlington's records custodian wrote to Koloff on September

25, 2014, stating that his requests were subject to an "ongoing

[OAG]   investigation"         and     the       OAG   would    determine     what   to

release.         The    Bergen       County       Police   Department's        records

custodian likewise denied Koloff's request based on the criminal

investigatory records exemption.

    Rutherford's borough clerk also denied Grant's request in a

September    23,       2014,   letter,           stating   it    pertained     to    an



                                             9                                A-2523-14T1
investigation in progress, and release would jeopardize persons'

safety, the investigation, or would otherwise be inappropriate.

The clerk provided a statement from the Rutherford Police Chief,

disclosing     that   the   department        generated   one    CAD    entry,       two

incident reports, a daily activity log, and a copy of radio and

telephone transmissions, which were to be turned over to the

Attorney General's Office.              The police chief stated that all

further information requests should be directed to the OAG, at

the request of Lt. McGrath, the supervisor.6

     NJSP     postponed     its   response     three   times,    the     last     time

promising to respond by November 6, 2014.                  As late as October

23, 2014, the NJSP records custodian wrote that he was "still

trying   to    determine    if    the   investigation     into    the        death    of

Kashad   Ashford      was   conducted     by     the   NJSP."7         The    records


6
  It is unclear from the record whether a similar letter was sent
to Koloff.
7
   The   records  custodian   asserted  a  lack   of  knowledge,
notwithstanding that the State Police's involvement was publicly
acknowledged in the OAG's September 16, 2014, press release.
Entitled "Attorney General's Shooting Response Team Investigates
Fatal Shooting in Rutherford Involving State Police & Local
Officers," the release stated:

              Under an Attorney General Directive, the
              Shooting Response Team, made up of deputy
              attorneys   general,   detectives    of    the
              Division of Criminal Justice, and detectives
              of the State Police Major Crime Unit, are
              dispatched   to    the   scene    to    handle
                                                           (continued)


                                         10                                   A-2523-14T1
custodian stated his search was impeded by the lack of a "case

number."

     NJMG's two-count complaint alleged violations of OPRA and

the common law right to know.            NJMG sought an order compelling

the release, or an in camera review, of documents believed to be

exempt; and fees and costs pursuant to N.J.S.A. 47:1A-6.                  The

court entered an Order to Show Cause (OSC) returnable December

12, 2014, which was adjourned to January 9, 2015, at the OAG's

request.

     After    the     complaint   was   filed,   Rutherford   and   the   OAG

released documents.        On December 5, 2014, Rutherford's counsel

wrote that he determined disclosure was appropriate under OPRA

"despite initially being advised to the contrary by the New

Jersey     Attorney    General's    Office."       The   counsel    provided

unredacted copies of: a CAD report, a property report, a compact

disc (CD) containing the recordings of three phone calls from

the public regarding the incident, and a CD containing "Radio

Transmissions from Rutherford PD Case # 14-19344, 9-16-14."8              The



(continued)
          investigations of shootings involving state
          troopers or officers employed by county
          prosecutors as detectives/investigators or
          members of county task forces.
8
  Actual playable copies of the recordings were not included in
the record on appeal.      Instead, the State simply provided
                                                    (continued)


                                        11                          A-2523-14T1
CAD report listed the names of the officers dispatched, their

car numbers, along with their response times, and the name of

the   dispatcher.      It    included       an   entry    that     all    additional

information and reports were to be generated by the OAG.

      Rutherford's     attorney      also    provided      three      investigation

reports, which were redacted.9              A Vaughn10 index was provided,

explaining   the     records   were    redacted      for    three        reasons:    to

protect    against    disclosing      personal      information          that     would

violate   "reasonable     privacy     interests,"        pursuant        to   N.J.S.A.

47:1A-1 and Burnett v. County of Bergen, 198 N.J. 408 (2009); to

shield    criminal    investigatory     records,         pursuant      to     N.J.S.A.

47:1A-1.1;    and    to     shield    records      related       to      an     ongoing

investigation, the release of which would be detrimental to the


(continued)
photocopies of the CDs.         Rutherford's counsel stated they were
unredacted.
9
   The reports consisted of: (1) a two-page supplemental
investigation report, dated September 16, 2014, by a detective
who responded to the scene of "a police involved shooting," and
reported taking possession of the handgun found in the suspect's
vehicle; (2) a two-page supplemental investigation report, dated
September 16, 2014, by a detective-sergeant, who reported that
he responded at 3:27 a.m. to the police-involved shooting,
conferred with other officers and the police chief, and later
made a copy of phone and radio recordings, which were to be
turned over to the NJSP; and (3) a November 10, 2014,
supplemental investigation report by the detective-sergeant,
which was almost completely redacted.
10
  Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).



                                       12                                     A-2523-14T1
public interest, under N.J.S.A. 47:1A-3(a) and (b).                                  Rutherford

Police Department telephone and radio recordings were placed on

a CD-R, which was turned over to the NJSP.

       On   December       22,    2014,       the     OAG    released       a    9-1-1          call

recording, and what its counsel described as "CAD reports" in

the possession of the DCJ.                   The dispatch reports were actually

contained within other documents, which were to varying degrees,

redacted without explanation.                  These included: a North Arlington

Police Department Investigation Report, which included mostly

unredacted incident details, and completely redacted sections

entitled    "name     details"         and    "narrative      details";         a     Lyndhurst

Police Department Dispatch Log, with the officer name section

redacted;      a    Bergen    County         Police    Department         Incident          Report

Form, which included unredacted information about the incident,

but    redacted      the     names     of     the     officers      who     generated           and

approved the report, and included a blacked-out half page.                                       The

State   did    not    provide      a    Vaughn      index,    nor     did       it    expressly

confirm whether the remaining requested documents existed.

       In     its    response          to     the     OSC,     the        State        provided

certifications from Det. Lawrence and Lt. McGrath.                               In addition

to setting forth details of the events leading to the shooting,

Det.    Lawrence      stated      that       the    SRT     assumed    control             of   the

investigation        "once       the    shooting       took    place."               The    SRT's




                                               13                                      A-2523-14T1
investigation of the shooting, as well as its investigation into

Bynes's actions, were ongoing at the time of the certification,

on December 10, 2014.           However, Bynes, who was released on bail,

was   fatally    shot     in    Newark    in    March   2015.11       Det.    Lawrence

asserted that all documents generated after the initial 9-1-1

call were investigatory.

      Lt.    McGrath      generally      explained      the   Attorney       General's

Directive       2006-5,        which     established      the       procedures      for

investigating fatal police shootings, and the role of the SRT,

which operates independently from the ordinary chain of command.

Lt. McGrath stated that consistent with the directive, the SRT

assumed control of the investigation of the shooting, and the

underlying alleged criminal actions of Ashford and Bynes.                         Also

consistent with the directive, Lt. McGrath expected the matter

to be presented to a State Grand Jury after the SRT completed

its    investigation.              DCJ     maintained         all    evidence       and

investigative materials.           Lt. McGrath asserted the investigation

was ongoing.

      With    respect      to    the   reporters'       document     requests,      Lt.

McGrath     conceded      the    reporters      were    entitled     to   the    9-1-1


11
   See Dan Ivers, Newark murder victim was second suspect in
Lyndhurst fatal police shooting, NJ.com (Mar. 12, 2015, 5:29
PM),     http://www.nj.com/essex/index.ssf/2015/03/newark_murder_
victim_was_second_suspect_in_lyndhur.html.



                                           14                                 A-2523-14T1
recordings and related CAD reports, which the OAG released soon

thereafter with redactions in the case of the CAD reports.                     He

explained the initial 9-1-1 recording was not a product of the

investigation,   although     the    call   prompted     it.     He    did    not

explain the basis for releasing the CAD reports.                   Lt. McGrath

asserted that releasing "any of the other requested records . . .

would   irrevocably   compromise      the   ongoing    investigation."         He

contended     that    release       would    "corrupt     the      independent

recollections of witnesses," and lead witnesses to alter prior

statements,    resulting     in     inconsistent      statements      that    may

benefit a defendant.       However, Lt. McGrath did not confirm which

of the other requested documents were actually withheld, and

which simply did not exist.

    Lt. McGrath sought the opportunity to present, under seal

and ex parte, "case-specific examples of how the threats to the

integrity of the ongoing investigation and the negative impact

of same on the public interest, would be evident in release of

the records being sought for production here."                  He stated he

could   not   provide    a    more     specific    justification        without

disclosing the information the OAG sought to keep confidential.

    On the return date of the OSC, the trial court concluded

NJMG was entitled to all the records requested pursuant to both

OPRA and the common law, effective upon entry of the court's




                                      15                                A-2523-14T1
order.     The court denied the OAG's motion to review an ex parte

certification from Lt. McGrath.

    In its decision, the court reviewed the factual history of

the case, and the various governmental entities' responses to

NJMG's OPRA requests.          The court held that redacting documents

was equivalent to the denial of access, citing Newark Morning

Ledger Co. v. New Jersey Sports & Exposition Authority, 423 N.J.

Super. 140, 148 (App. Div. 2011).

    Addressing      NJMG's         access    rights     under     OPRA,   the   court

concluded    that      neither      the     criminal        investigatory    records

exception,    N.J.S.A.       47:1A-1.1,      nor     the     ongoing   investigation

exception,    N.J.S.A.       47:1A-3(a),          shielded    the   documents    from

release.     The former provision excludes "criminal investigatory

records" from the definition of government records subject to

disclosure under OPRA, unless the records are "required by law

to be made, maintained or kept on file."                    N.J.S.A. 47:1A-1.1.

    The     court   concluded        the    governmental       entities   failed    to

meet their burden to show the "required by law" exception-to-

the-exception did not apply.                 The court held that UFRs were

required    by   law    to    be    made,        pursuant    to   Attorney   General

directives, which have the force of law, citing O'Shea, supra,

410 N.J. Super. at 382.            The court held that 9-1-1 calls, police

dispatch records, and CAD entries were also "required by law"




                                            16                               A-2523-14T1
documents, citing Serrano v. South Brunswick Township, 358 N.J.

Super.     352,    364    (App.     Div.     2003),     N.J.S.A.    52:17C-1,      and

N.J.A.C. 17:24-2.4.            Motor vehicle accident reports were not

exempt from disclosure because they must be made public pursuant

to N.J.S.A. 39:4-131.           As for the remaining documents, the court

held that local police general orders and policies have the

force of law necessary to remove the records from the exemption,

citing O'Shea, supra, 410 N.J. Super. at 382-83, and the State

failed to demonstrate by competent evidence that those orders or

policies did not apply.

     The    court       also   rejected      the    State's      reliance    on    the

"ongoing investigation" exception, which applies only if release

of   documents      would      be   "inimical      to     the   public     interest."

N.J.S.A. 47:1-3(a).            The court was unpersuaded by the State's

general argument that release of investigatory materials would

taint witnesses' independent recollections.                     The court declined

to consider Lt. McGrath's proposed ex parte submission.                            The

court held that whether to consider documents under seal was a

discretionary       decision,       citing      Hammock    ex    rel.    Hammock    v.

Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995).                          The judge

concluded Lt. McGrath had failed to provide sufficient proof of

injury     if     the    proposed    second      certification      were     publicly

released.




                                           17                                A-2523-14T1
       The court likened the State's arguments to the claim that

release of investigatory documents would taint potential jurors,

which the court stated was rejected in Courier News v. Hunterdon

County    Prosecutor's      Office,         358       N.J.    Super.       373    (App.    Div.

2003).        Additionally,         the      court           discussed       the     public's

substantial       interest        in      police         shootings          of     suspects,

particularly given recent incidents in Ferguson, Missouri, and

Staten Island, New York.            The court noted that significant time

had passed since the shooting of Ashford, and witness statements

were likely already obtained.

       The court also held that the OAG failed to comply with the

OPRA     provision    requiring         release          of     certain          information,

specified    in    the     law,    absent         a    showing       the    release       would

jeopardize persons' safety, an investigation, or was otherwise

inappropriate.       N.J.S.A. 47:1A-3(b).                    The court determined the

press    release     was    insufficient,              and    release       of     underlying

documents was required.

       The court found the responding entities failed to comply

with the timelines mandated by OPRA.                     Also, the court concluded

NJMG was entitled to fees under OPRA and asked the parties to

attempt to agree upon a "reasonable quantum of fees."                                 Absent

agreement,     the   court        set   a    schedule          for     submission         of   a

certification of services, as well as a response.




                                            18                                       A-2523-14T1
    Finally, the court addressed NJMG's rights under the common

law right of public access.             Citing Keddie v. Rutgers, 148 N.J.

36 (1997), the court identified the three predicates                            to the

common law right of access.               As stated in Keddie, the three

predicates    are:     "(1)    the     records    must      be    common-law    public

documents;    (2)     the     person    [or    entity]       seeking    access     must

establish an interest in the subject matter of the material; and

(3) the citizen's right to access must be balanced against the

State's interest in preventing disclosure."                      Id. at 50 (internal

quotation marks and citations omitted).                     The trial court noted

that no party disputed that the requested documents were common

law public records.            Moreover, NJMG had standing, given its

interest     in    policing     the    workings       of    government.        Lastly,

balancing the factors set forth in Loigman v. Kimmelman, 102

N.J. 98 (1986), the court found that the public's interest in

disclosure        outweighed    the     responding         entities'    interest      in

confidentiality.

    By     order     entered    January    22,    2015,      the    court   compelled

defendants to "locate, identify and produce, without redactions,

all responsive records to [NJMG's] OPRA requests and provide

such records to [NJMG]" within three days.                    On January 26, 2015,

the court granted a stay until January 30, 2015, but otherwise

denied   a   stay     pending    appeal.         We    subsequently       granted     an




                                          19                                   A-2523-14T1
emergent motion for leave to appeal, and stayed the court's

order.12

                                            II.

     We exercise de novo review of the trial court's decision

that OPRA requires disclosure of publicly held records.                                    See,

e.g., K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,

349 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012).                                   "We

apply      the   same    standard      of     review          to     the    court's      legal

conclusions with respect to whether access to public records is

appropriate      under   the    common-law         right       of    access."         Drinker

Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J.

Super. 489, 497 (App. Div. 2011).                        We apply a different and

deferential      standard      of    review       when    a    court       conducts     an    in

camera review of documents and balances competing interests in

disclosure and confidentiality in connection with a common-law-

based request to inspect public records.                           Shuttleworth v. City

of Camden, 258 N.J. Super. 573, 588 (App. Div.), certif. denied,

133 N.J. 429 (1992).            However, "to the extent [the appellate

court]     can   be     said    to    be     reviewing             essentially    a      legal


12
  The motion was filed by the Attorney General on behalf of the
NJSP and its records custodian.       The Bergen County Police
Department, Lyndhurst, North Arlington, and Rutherford, as well
as their records custodians, joined in the Attorney General's
request for emergent relief from the court order.     They have
joined in the Attorney General's brief on appeal.



                                            20                                        A-2523-14T1
determination, [it] can review the documents which the trial

judge ordered disclosed . . . ."                     Ibid.

         In determining whether documents or information related to

a criminal investigation must be disclosed under OPRA, a court

must     engage        in    a    three-stage        statutory    analysis,         which    we

describe below.                  See N.J.S.A. 47:1A-1.1, -3(a), -3(b).                      The

governmental entity bears the burden to establish a basis for

non-disclosure.              N.J.S.A. 47:1A-6.           It is undisputed that but

for any exemptions, the requested records qualify as "government

record[s]"        subject         to   access    under       OPRA,   because        they    are

documents or recordings made, maintained, or kept on file by

public     officials.              N.J.S.A.     47:1A-1.1.           The     trial    court's

decision raises interpretational issues as to each stage of the

statutory analysis.

         First,      the     court      must    consider      whether        the    requested

document        is     a    "criminal      investigatory         record[],"         which    is

excluded        from       the    definition    of     government      record       generally

subject     to       disclosure        under    OPRA.        N.J.S.A.      47:1A-1.1.         A

"criminal investigatory record" is defined as a document "held

by   a    law     enforcement          agency   which    pertains       to    any    criminal

investigation or related civil enforcement proceeding[,]" which

is "not required by law to be made, maintained or kept on file."

Ibid.      The provision thus raises two issues for analysis: what




                                                21                                   A-2523-14T1
"pertains to" an investigation or enforcement proceeding; and

what satisfies the "required by law" standard.

    Second,      even      if     the      document          does       not     qualify    as    a

"criminal investigatory record" — for example, because it is a

"required by law" document — the court must consider whether the

document may be withheld as a document that "pertain[s] to an

investigation in progress by any public agency . . . if the

inspection, copying or examination of such record or records

shall be inimical to the public interest."                          N.J.S.A. 47:1A-3(a).

This exception, however, does not apply to a record that was

"open   for    public      inspection          .    .    .   before       the      investigation

commenced."      Ibid.       We examine the trial court's rejection of

the State's claim that release of the documents was "inimical to

the public interest."

    Regardless        of    whether        a       document       can   be      withheld    as   a

"criminal investigatory record" under N.J.S.A. 47:1A-1.1, or as

a document pertaining to an ongoing investigation, the release

of which would be inimical to the public interest under N.J.S.A.

47:1A-3(a),      a    public         agency         must     still        disclose        certain

"information"        pertaining       to       a    criminal        investigation          within

twenty-four     hours      of    a    request           or   as    soon       as   practicable.

N.J.S.A. 47:1A-3(b).            This information includes:

                   where a crime has been reported but no
              arrest yet made, information as to the type



                                               22                                       A-2523-14T1
of crime, time, location and type of weapon,
if any;

     if an arrest has been made, information
as to the name, address and age of any
victims unless there has not been sufficient
opportunity for notification of next of kin
of any victims of injury and/or death to any
such victim or where the release of the
names of any victim would be contrary to
existing law or court rule. In deciding on
the release of information as to the
identity of a victim, the safety of the
victim and the victim's family, and the
integrity of any ongoing investigation,
shall be considered;

     if an arrest has been made, information
as to the defendant's name, age, residence,
occupation,   marital  status  and   similar
background information and, the identity of
the complaining party unless the release of
such information is contrary to existing law
or court rule;

     information as to the text of any
charges such as the complaint, accusation
and indictment unless sealed by the court or
unless the release of such information is
contrary to existing law or court rule;

     information as to the identity of the
investigating and arresting personnel and
agency and the length of the investigation;

     information    of    the  circumstances
immediately     surrounding   the    arrest,
including but not limited to the time and
place of the arrest, resistance, if any,
pursuit, possession and nature and use of
weapons and ammunition by the suspect and by
the police; and

     information    as   to    circumstances
surrounding bail, whether it was posted and
the amount thereof.



                     23                        A-2523-14T1
           [Ibid.]

However,   the   public    agency   may   withhold   such   information    if

release would "jeopardize the safety of any person or jeopardize

any investigation in progress or may be otherwise inappropriate

to release."     Ibid.    This "exception shall be narrowly construed

to prevent disclosure of information that would be harmful to a

bona fide law enforcement purpose or the public safety."              Ibid.

When a public agency relies on this exception, it shall issue a

brief explanation.       Ibid.13


13
   Under appropriate circumstances, a court must also ascertain
whether a document pertaining to a criminal investigation is
exempt from disclosure pursuant to other "statute; resolution of
either or both houses of the Legislature; regulation promulgated
under the authority of any statute or Executive Order of the
Governor; Executive Order of the Governor; Rules of Court; any
federal law, federal regulation, or federal order."     N.J.S.A.
47:1A-1. Depending on the circumstances, a request for records
relating to a criminal investigation may implicate other
exemptions.    While we do not attempt here to present an
exhaustive list, we note the definition of "government record"
excludes documents in the following categories that conceivably
may be implicated in a criminal investigation: "inter-agency or
intra-agency advisory, consultative, or deliberative material";
under specified circumstances, "photographs and videotapes of
the body . . . of a deceased person" in connection with
autopsies; "security measures and surveillance techniques which,
if disclosed, would create a risk to the safety of persons,
property, electronic data or software"; and "information which
is to be kept confidential pursuant to court order."    N.J.S.A.
47:1A-1.1.     Also, OPRA does not override any grant of
confidentiality    or  privilege   previously   established   or
recognized by the Constitution, statute, court rule, or judicial
case law, N.J.S.A. 47:1A-9(b), which would include, among
others, documents covered by the informer's privilege, N.J.R.E.
516, and attorney-client privilege, N.J.R.E. 504. As defendants
                                                     (continued)


                                     24                            A-2523-14T1
                                     III.

       We turn first to the court's determination that the State

failed to meet its burden to show that the requested documents

were    criminal        investigatory         records,       that     is,      records

"pertain[ing]     to    any   criminal    investigation        or    related     civil

enforcement proceeding[,]" and "not required by law to be made,

maintained   or    kept    on   file."        See    N.J.S.A.       47:1A-1.1.      As

explained    above,      "required   by       law"   documents       constitute     an

exception-to-the-exception of documents pertaining to a criminal

investigation or related civil enforcement proceeding.                       Based on

the legislative history, and prior case law, we are persuaded

that the court interpreted the "required by law" exception-to-

the-exception     too    broadly.       On    the    other    hand,    the     court's

findings with respect to release of 9-1-1 recordings and part of

the CAD reports are consistent with principles we shall set

forth below regarding what constitutes documents that do or do

not "pertain[] to any criminal investigation."                  See ibid.

                                         A.

       We address the "required by law" issue first.                    We begin by

reviewing legislative history, which justifies applying pre-OPRA

case law in interpreting this exception-to-the-exception.                           We


(continued)
do not invoke these exclusions, we                     do    not     address     their
applicability to the case before us.



                                         25                                  A-2523-14T1
then review that case law, and apply it to the requests in this

case.

      OPRA was adopted in 2002 as an amendment to the Right to

Know Law (RTKL), which had remained largely intact since its

enactment in 1963.         L. 1963, c. 73.14          The RTKL generally created

a statutory right of access to government documents "required by

law to be made, maintained or kept on file."                    L. 1963, c. 73, §

1, repealed by L. 2001, c. 404, § 17.                     The "required by law"

precondition was narrowly construed.                  See, e.g., Keddie, supra,

148 N.J. at 46 ("[T]his Court has consistently held that the

Right-to-Know Law's definition of a public record is narrow and

is to be strictly construed.").                  The RTKL also excluded from

release documents pertaining to investigations in progress, if

release would be inimical to the public interest.                     L. 1963, c.

73,   §   3    (permitting       the    denial   of    access   to   records     that

"pertain to an investigation in progress . . . [and] inspection,

copying       or   publication     of    such    record    or   records   shall      be

inimical to the public interest").

      The      "required    by     law"    standard       was   recognized      as    a

significant impediment to public access under the law.                    As noted


14
   Amendments were adopted in 1995 to address issues involving
biotechnology trade secrets, see L. 1995, c. 23, and in 1998 to
address convicts' access to certain information.    L. 1998, c.
17, § 1.



                                           26                                A-2523-14T1
by Senator Robert J. Martin, the principal co-author of the

Senate version of the legislation that ultimately was enacted as

OPRA:

           We have a Right to Know Act, which dates
           back to 1963. The problem with that law is
           that it only requires . . . [access to]
           documents that are required by law to be
           made . . . maintained, or kept on file. The
           statute, in other words, is very narrow in
           its form.   And what has happened is that
           many records, which the public, I think,
           would expect to be available to them, are
           not required by law to be made — to be
           maintained.

           [Public Hearing before Senate Judiciary
           Comm., Senate Bill Nos. 161, 351, 573, and
           866, 209th Legislature (March 9, 2000)
           (Statement of Sen. Martin) at 1-2.]15

     The   legislative   response       in    OPRA   required   access    to

"government   records"   subject    to       enumerated   exceptions,    and

defined "government records," as those in their various forms,

"that ha[ve] been made, maintained or kept on file" without

regard to whether the law required them to be made, maintained,

or kept on file.   This change was embodied in the legislation as

introduced, and as finally enacted.            Compare Assembly Bill No.


15
   Senator Martin and Senator Byron M. Baer were the original
sponsors of Senate Bill No. 2003, which was introduced in
December 2000. That bill was similar — although not identical —
to Assembly Bill No. 1309, originally introduced by Assemblymen
George F. Geist and Jack Collins, which as amended was enacted
as OPRA.    The public hearing pertained to prior versions of
reform legislation.



                                   27                             A-2523-14T1
1309, 209th Legislature (Pre-filed for Introduction in the 2000

Session) and Senate Bill No. 2003, 209th Legislature (December

14, 2000), with Assembly Bill No. 1309, 209th Legislature (Fifth

Reprint) (January 8, 2002), and L. 2001, c. 404, § 2.

      In its initial version, the legislation did not single out

criminal investigatory records for special treatment within the

definition       of   "government    record."        However,        a   Senate   floor

amendment    offered        by   Senator    Martin       to   the    Assembly-passed

version of Assembly Bill No. 1309 changed that.                          The amendment

excluded from the definition of government records, "criminal

investigatory records," which it defined as "a record which is

not required by law to be made, maintained or kept on file that

is   held   by    a   law   enforcement         agency   which      pertains   to    any

criminal investigation or related civil enforcement proceeding."

See Assembly Bill No. 1309 (Fifth Reprint).                      Such records were

"deemed . . . confidential" for the purposes of the statute, as

were other documents covered by other exemptions.                         The purpose

was to narrow access to criminal investigatory records.                              See

Statement to Senate Bill No. 2003 with Senate Floor Amendments,

209th Legislature (Proposed by Senator Martin) (Adopted May 3,

2001) ("The amendments exempt criminal investigatory records of

a law enforcement agency from the statutory right of access.




                                           28                                  A-2523-14T1
However, a common law right of access could be asserted to these

and other records not accessible under the statute.").

    Also part of the floor amendment was the provision now

codified     at    section       3(b),    described         above,       which     requires

disclosure        of     specified        information            about      a      criminal

investigation,         notwithstanding         any    exemption      from       disclosure,

provided     it        does     not     jeopardize          persons'       safety,         the

investigation, or is otherwise inappropriate.                        The provisions of

section    3(b)    were       largely    drawn       from   an   executive        order     of

Governor Whitman, see Exec. Order No. 69, ¶ 3 (Whitman) (May 15,

1997),    which    in     turn      largely    incorporated        the      terms     of   an

executive order of Governor Kean.                    See Exec. Order No. 123, ¶ 2

(Kean) (Nov. 12, 1985).

    Beginning          with    an     order    of     Governor       Hughes      in    1963,

"[f]ingerprint cards, plates and photographs and other similar

criminal investigation records which are required to be made,

maintained or kept by any State or local government agency" were

exempt from disclosure under the RTKL.                       Exec. Order No. 9, ¶

2(e) (Hughes) (Sept. 30, 1963).                     Governor Kean continued this

exemption,    with      the    proviso    that       the    information,         ultimately

identified in section 3(b), "shall be made available to the

public as soon as practicable unless it shall appear that the

release of such information will jeopardize the safety of any




                                              29                                    A-2523-14T1
person     or    any    investigation          in     progress    or     be   otherwise

inappropriate."         Exec. Order No. 123, ¶ 2 (Kean).                      The order

went on to state that "'as soon as practicable' shall generally

be understood to mean within 24 hours."                  Ibid.

    Thus, Senator Martin's amendment restored, with respect to

criminal    investigatory           records,    the    RTKL's    "required     by   law"

standard.        Criminal       investigatory         records     were    exempt    from

access if they were "not required by law to be made, maintained

or kept on file."           In other words, the public's right of access

to criminal investigatory records reverted to what existed pre-

OPRA: access was granted to records "required by law to be made,

maintained       or    kept    on    file."         However,     the   drafters     also

codified the mandate to release of identified information, in

place since Governor Kean's 1985 order.

    In view of this history, it is appropriate to interpret the

"criminal investigatory records" exception in OPRA in light of

pre-OPRA    case      law     interpreting      the    RTKL's    "required     by   law"

standard in cases involving requests for records pertaining to

criminal        investigations.            According        to     well-established

principles       of     statutory        construction,           the     Legislature's

reinsertion of the RTKL's formulation reflected its approval of

prior    judicial       interpretation,         as     it   applied      to    criminal

investigatory records.




                                           30                                   A-2523-14T1
                   The construction of a statute by the
              courts, supported by long acquiescence on
              the part of the Legislature, or by continued
              use of the same language or failure to amend
              the   statute,   is    evidence  that   such
              construction is in accordance with the
              legislative intent.    The persuasive effect
              of such legislative inaction is increased
              where the statute has been amended after a
              judicial construction without any change in
              the language so interpreted.

              [Lemke v. Bailey, 41 N.J. 295, 301 (1963)
              (citations omitted).]

"Moreover, courts will not impute a legislative intention to

alter   an    established     judicial    interpretation        absent      a    'clear

manifestation'       of    such   intent."        Coyle    v.    Bd.     of       Chosen

Freeholders of Warren Cnty., 170 N.J. 260, 267 (2002) (citation

omitted).       The case for inferring legislative endorsement of

prior judicial interpretation is especially strong in this case,

which presents not merely the acquiescence in prior language, or

amendment without change of prior language, but the affirmative

restoration     of   prior    language    after    its    deletion     in       earlier

versions of the legislation.16

      We recognize that OPRA generally commands that limitations

on access to government documents "shall be construed in favor

of   the     public's     right   of   access."     N.J.S.A.      47:1A-1.              By

16
   We thus part company with the view of the panel in O'Shea,
supra, 410 N.J. Super. at 381, that gave little weight to
decisions under the RTKL, in interpreting the "criminal
investigatory records" exception.



                                         31                                     A-2523-14T1
contrast, as noted, the "required by law" standard was narrowly

construed, including as applied to records related to criminal

investigations.          See Shuttleworth, supra, 258 N.J. Super. at

581; Home News Publ'g Co. v. State, 224 N.J. Super. 7, 11 (App.

Div.    1988).          We       do    not   construe        OPRA's       general    rule     of

construction       as        a     basis     to     deviate     from       the   established

interpretation      of           the   "required       by    law"    standard,       which    by

amendment    was        reinserted           into      OPRA.         The    OPRA     rule     of

construction guides statutory interpretation where the statute

is unclear, or ambiguous.                    The "required by law" standard was

already clearly defined by established case law.

                                                  B.

       According    to           pre-OPRA    judicial        interpretation,        documents

are "required by law to be made, maintained or kept on file," if

so   mandated     by     a        statute,       regulation,        executive       order,    or

judicial decision.                We are not persuaded that a generic record

retention policy, or an internal agency directive of a public

official would suffice to satisfy the "required by law" standard

with respect to criminal investigatory records.

       The distinction between documents "required by law," and

documents    created             through     the       exercise      of    discretion,       was

recognized   in     Irval          Realty     Inc.      v.   Board    of    Public    Utility

Commissioners,          61        N.J.     366     (1972),     which       involved      civil




                                                  32                                  A-2523-14T1
investigational records.           Id. at 369-71.       After a gas explosion,

the plaintiffs sought reports that a utility prepared and filed

with the Board of Public Utility Commissioners (PUC), and an

investigative report prepared by the PUC staff.                 Id. at 369-70.

The    utility's     report    was    prepared    pursuant      to     a    formally

promulgated PUC regulation requiring utilities to report certain

accidents.         Id.   at   370.        The   Court    held   that       the   RTKL

encompassed the utility's reports because the PUC's regulation

had "the force of law and require[d] that such reports be made."

Id. at 375.        The Court did not so find as to the PUC staff's

reports, stating, "Whether the investigation reports prepared by

members of defendant's staff meet this definition is less clear,

but need not be decided here since they certainly qualify as

public records within the scope of the common law rule."                     Ibid.17

See also Attorney General George F. Kugler, Jr., New Jersey's

Right to Know, A Report On Open Government 9 (1974) (stating

that    the   "required       by   law"    precondition     "clearly        embodies

administrative rules and regulations as well as statutes").

       In another utility case, the Court held that an order of

the Board of Public Utilities (BPU), which directed solid waste


17
  The Court did not address the exemption under section 3 of the
RTKL governing release of documents pertaining to ongoing
investigations, where release would be inimical to the public
interest. See L. 1963, c. 73, § 3.



                                          33                                A-2523-14T1
utilities      to   provide       the       BPU    with    customer     lists,    did   not

satisfy the RTKL's "required by law" standard, meaning the lists

were not subject to release under the RTKL.                           In re Request for

Solid Waste Util. Customer Lists, 106 N.J. 508, 525 (1987) ("In

re Request").           The Court stated: "The lists are not 'records

which are required by law to be made, maintained[,] or kept on

file    by    any   board     .    .    .    .'         [T]he   order   was   merely     an

administrative directive, and not the equivalent of either a

statute or a Board regulation . . . and therefore not subject to

disclosure as public records."                    Ibid. (citation omitted).

       In another case, the Court also held that the RTKL did not

cover        documents      pertaining             to     a     background       character

investigation,          performed           in     response      to     the   Governor's

discretionary request.                 Nero v. Hyland, 76 N.J. 213, 220-21

(1978).        The records were not "required by law to be made,

maintained or kept on file" because "[n]o statute, regulation,

executive       order    or       judicial         decision     require[d]       that   the

Governor conduct a character investigation . . . ."                           Ibid.     The

Court rejected the trial court's "engrafting upon [the RTKL] the

definition of a public record contained in the Destruction of

Public Records Law [(DPRL)], N.J.S.A. 47:3-16."                         Id. at 221.

       The Court directly addressed a RTKL request for documents

pertaining to a criminal investigation in State v. Marshall, 148




                                                 34                               A-2523-14T1
N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d   88   (1997).       In    his    effort       to    collaterally     challenge    his

conviction, Marshall sought access to the entire investigative

file in his case.           Id. at 268.

       The Court broadly and unqualifiedly held, "The Right-to-

Know Law does not provide defendant with the right to inspect

the law-enforcement files sought in this case because no law or

regulation         requires   that    such    files       'be   made,    maintained    or

kept.'"       Id. at 272-73 (citation omitted).                 The court cited with

approval River Edge Savings & Loan Association v. Hyland, 165

N.J. Super. 540, 545 (App. Div.), certif. denied, 81 N.J. 58

(1979), for the proposition that "no law required that results

of     law-enforcement         official's          investigation         into   alleged

criminal offense be maintained or kept, and thus such results

were not subject to Right-to-Know Law."                         Marshall, supra, 148

N.J.    at    273.     The    court    also       approvingly     cited    Asbury    Park

Press, Inc. v. Borough of Seaside Heights, 246 N.J. Super. 62,

67 (Law Div. 1990), for the principle that "no law required that

police reports be maintained or kept and thus reports were not

subject to [the] Right-to-Know Law."                     Marshall, supra, 148 N.J.

at 273.

       We applied these principles in denying a newspaper's claim

under        the     RTKL     to     access        to     a     police    department's




                                             35                                 A-2523-14T1
investigational reports in Daily Journal v. Police Department of

Vineland,       351   N.J.    Super.      110,    120-21    (App.    Div.),      certif.

denied, 174 N.J. 364 (2002).

                We have found no case holding that criminal
                investigation reports are public records
                under the RTKL.     Indeed, the courts have
                held to the contrary, on the basis that no
                law or regulation requires the making,
                maintaining or keeping on file the results
                of a criminal investigation by a law
                enforcement officer or agency.

                [Id. at 120.]

We rejected the contention that the "required by law" standard

was satisfied by N.J.S.A. 40:48-6, which we stated "provides how

. . . governmental material shall be kept in order to secure the

material        against    fire     and   ordinary    theft,"       or   by   N.J.S.A.

40A:14-118, which "provides only for the creation of a police

force and for the maintenance, regulation and control thereof."

Id.   at   121.       Thus,    the     incidental     or    indirect     creation       or

retention of documents is not enough.

      We reached a similar conclusion in Shuttleworth, where, as

here,    the     plaintiff    sought      records    involving      a    fatal    police

shooting of a criminal suspect.                  Shuttleworth, supra, 258 N.J.

Super.     at    579-81.      The    shooting      victim   in   that     case,     named

Watson, was already in custody.                  Id. at 578.     Specifically, the

plaintiff sought "all reports relating to Watson's arrest and

the related firearm discharges[,] . . . tape recordings of the



                                            36                                   A-2523-14T1
investigation, the police inventory of Watson's possessions, and

copies     of     any    rules      or     procedures         of     the       Camden      Police

Department       pertaining         to    firearms      in     the    area       of     prisoner

detentions."          Id. at 580.         We rejected the plaintiff's argument

that   N.J.S.A.         40:48-6      or    provisions        of    the     municipal         code

required     "that       the      investigative         reports       .    .     .    be     made,

maintained or kept on file."                    Ibid.      We stated, "Rather, they

provide     how       material      which       is    in     the     possession         of       the

government,       whether      by    virtue      of     some      legal     requirement           or

otherwise,       is     to   be     maintained.            Thus,     they       need       not   be

'maintained' by law within the meaning of the [RTKL]."                                 Ibid.18

       A broad reading of the "required by law" exception to the

"criminal investigatory record" exception, as suggested by NJMG,

also conflicts with the Legislature's intent as expressed by the

adoption of the provision, previously found in Governor Kean's

and Governor Whitman's executive orders, mandating disclosure of

specified       information        about    a    reported      crime.           See     N.J.S.A.

47:1A-3(b).        Were access to investigative records as extensive

as NJMG suggests, notwithstanding the "criminal investigatory

records" exception, then there would have been little need to


18
   Strictly speaking, these observations were dictum, as the
court stated it did not need to decide whether the police
investigative file was a public record under the RTKL. Id. at
581.



                                                37                                      A-2523-14T1
mandate   disclosure    of   information         in   section    3(b).        We   are

unpersuaded by NJMG's argument that the principal purpose of

adding section 3(b) was simply to assure the speedy release of

the specified information.

       We recognize that the RTKL authority reviewed above does

not    expressly   address   whether        an   internal       agency   directive

satisfies the "required by law" standard.                      Nor do the cases

address the impact of judicial decisions requiring the creation

or preservation of investigational materials.                    However, we are

unprepared    to   endorse   including       them     within    the   universe     of

documents "required by law to be made, maintained or kept on

file."

       First, the Court in Marshall spoke definitively and without

reservation that the defendant's law enforcement file did not

include "required by law" documents.                  See Marshall, supra, 148

N.J. at 273.       We hesitate to find exceptions to the Court's

definitive statement of law.       See White v. Twp. of N. Bergen, 77

N.J.   538,   549-50   (1978)   (noting      that      trial    and   intermediate

appellate     courts   are   "bound,    under         the   principle    of    stare

decisis, by formidable precedent").              Moreover, we are unprepared

to explore the applicability of any judicial mandates to create

or preserve investigatory records, inasmuch as NJMG does not




                                       38                                 A-2523-14T1
rely on any such requirement, and the issue has not been briefed

by the parties.19

      Second, administrative directives of the Attorney General,

similar      to   the   BPU   order    in     In    re    Request,      are    "not   the

equivalent of either a statute or a . . . regulation."                           See In

re    Request,      supra,     106     N.J.        at    525.          Concededly,     an

administrative directive may be deemed, in one sense, to carry

the   full    force     and   effect   of     law       within   the    administrative

structure.        See O'Shea, supra, 410 N.J. Super. at 382 (stating

that Attorney General's "Use of Force Policy" which requires

police departments to complete and maintain UFRs "has the force

of law for police entities," based on the Attorney General's

authority     under     the   Criminal      Justice       Act    of    1970,   N.J.S.A.


19
   For example, the Court has held that police officers must
retain notes of witness interviews, in order to preserve them
for post-indictment production under Rule 3:13-3.      State v.
W.B., 205 N.J. 588, 607-08 (2011) (stating "law enforcement
officers may not destroy contemporaneous notes of interviews and
observations at the scene of a crime after producing their final
reports").    The Court has also mandated the creation and
retention of documents pertaining to identifications "as a
condition to the admissibility." State v. Delgado, 188 N.J. 48,
63 (2006); see also R. 3:11. There is no indication the Court
intended or anticipated that such records would, as a
consequence of its mandate, be subject to access under OPRA as
government records "required by law to be . . . kept on file,"
even before a defendant is entitled to their release under court
rule. Rather, the failure to maintain these records may result
in an adverse inference charge in the case of destroyed notes,
W.B., supra, 205 N.J. at 608-09, or the exclusion of an out-of-
court identification. Delgado, supra, 188 N.J. at 63-64.



                                         39                                     A-2523-14T1
52:17B-97 to -117 to adopt "guidelines, directives and policies

that bind local police departments").                      On the other hand, the

same may be said of the BPU order in In re Request — it had the

force of law as it concerned the regulated utilities.                               In re

Request, supra, 106 N.J. at 513.

      The    issuance       of    directives,      such    as     the    UFR   directive,

usually lies within the Attorney General's discretion and may be

withdrawn or modified at will.                    They also are internal to the

agency      and    related       agencies.         Attorney       General      directives

address other aspects of the investigative process.                            See, e.g.,

Delgado, supra, 188 N.J. at 61-62 (discussing Attorney General

guidelines        requiring      preservation       of    materials      pertaining      to

identification        procedures).           On    the    other    hand,       "[a]gencies

should   act      through       rulemaking    procedures        when     the    action   is

intended     to    have     a    'widespread,      continuing,          and    prospective

effect,' deals with policy issues, materially changes existing

laws, or when the action will benefit from rulemaking's flexible

fact-finding procedures."               In re Provision of Basic Generation

Serv. for Period Beginning June 1, 2008, 205 N.J. 339, 349-50

(2011) (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97

N.J. 313, 329-31 (1984)); see also Woodland Private Study Grp.

v.   N.J.    Dep't     of       Env't   Prot.,     109    N.J.     62,    69-76     (1987)

(analyzing the difference between internal agency directives,




                                             40                                   A-2523-14T1
which may be adopted informally, and directives that affect the

general public and must be adopted through formal rule-making);

In   re    Request,    supra,     106        N.J.   at     518-19   (discussing

administrative agency's informal action, as distinct from formal

rulemaking or adjudication).

     Treating internal agency directives on record creation or

retention as "required by law" would also create an anomaly

under the law.        OPRA retained the provision of the RTKL that

authorizes    agencies     to   exempt       documents     from   disclosure    by

"regulation promulgated under the authority of any statute or

Executive Order of the Governor."                N.J.S.A. 47:1A-1; see also

Irval, supra, 61 N.J. at 374 (stating this exemption power was

not intended to be "unlimited" and must "be exercised only when

necessary for the protection of the public interest").                 Thus, an

agency    may,   through    formally         promulgated    regulations,    both

require the making of a document, and exempt it from access.                   By

its plain language, the exemption power refers to promulgated

regulations, and does not extend to informally adopted agency

directives.      See N.J.S.A. 47:1A-1.              It would, therefore, be

anomalous to treat documents required or preserved pursuant to

internal directives as documents "required by law," since the




                                        41                              A-2523-14T1
directive's author would lack the accompanying power to control

its accessibility, which is otherwise granted under OPRA.20

                                         C.

       We    interpret    next    what        constitutes   a    document    that

"pertains" to a criminal investigation.                The issue is relevant

both    to   (1)    the   interpretation        of   "criminal    investigatory

record" in N.J.S.A. 47:1A-1.1 — which is defined as a document

that "pertains to any criminal investigation or related civil

enforcement proceeding" and is "not required by law to be made,

maintained or kept on file"; and (2) the interpretation of the

ongoing investigation exception in N.J.S.A. 47:1A-3(a) — which

exempts      from    disclosure     records          that   "pertain    to     an

investigation in progress by any public agency" if release would

be "inimical to the public interest" and the record was not

already open for public inspection.

       The ongoing investigation exception, as noted above, was

first established in the RTKL.                OPRA added the "exception-to-

the-exception" for documents already open to the public.                        L.

2001, c. 404, § 5.        Aside from minor wording changes, the RTKL


20
   To the extent the panel's decision in O'Shea relied upon the
opposite view, that is, that the "required by law" standard may
be satisfied by "guidelines, directives and policies," O'Shea,
supra, 410 N.J. Super. at 383, we respectfully disagree.
However, the holding in O'Shea was also based on the fact that
the UFRs did not "pertain" to an investigation. Id. at 385-86.



                                         42                             A-2523-14T1
exception remained unchanged in OPRA.        However, we have found no

pre-OPRA,   RTKL   case   that   expressly    interprets     the    phrase

"pertain to an investigation."

    OPRA cases have established that a document that is created

before an investigation starts, and therefore does not "pertain"

to an investigation at that point, does not change its character

once an investigation begins, even if the document relates to

the investigation.     For example, a 9-1-1 tape created before an

investigation   begins    does   not    pertain   to   an   investigation

commenced later, even if triggered by the 9-1-1 call.              Courier

News, supra, 358 N.J. Super. at 376, 380-81.            In Serrano, the

court addressed the "pertain to an investigation" language used

in the ongoing investigation exception.            Serrano, supra, 358

N.J. Super. at 366.       "The tape that is the subject of this

appeal was created hours before the police investigation began.

If it was a public record when created, then it would remain

accessible to the public under N.J.S.A. 47:1A-3(a) even if its

release would be inimical to the public interest."            Ibid.; cf.

O'Shea, supra, 410 N.J. Super. at 385-86 (rejecting argument

that a UFR generically pertains to a criminal investigation, as

"it cannot be assumed that a UFR might become part of a criminal

investigation").     On the other hand, when an officer turns on a

mobile video recorder to document a traffic stop or pursuit of a




                                   43                              A-2523-14T1
suspected criminal violation of law, that recording may pertain

to a "criminal investigation," albeit in its earliest stages.21

     However,    there   are   other    documents    that    police     prepare,

whether or not an investigation is commenced, which may partly

pertain to an investigation that has already commenced.                       For

example,    daily   activity   logs    or   CAD    reports   are    apparently

prepared on a regular basis, regardless of whether an officer is

performing a community caretaking function, such as assisting a

boy who fell off a bicycle; or investigating a crime, such as

interviewing    a   confidential       informant    regarding      an    ongoing

investigation into gang activity.            An entry about the former

activity would not "pertain to an investigation," but the latter

would.     Similarly, a UFR prepared after a police officer shoots

a dangerous dog may not pertain to a criminal investigation.

However, a UFR documenting the use of force in the course of

arresting a criminal suspect would.               We conclude that entries

related to criminal investigative activities are properly deemed

to "pertain[] to any investigation."




21
  We do not address whether a recording initiated to document a
suspected non-criminal violation of motor vehicle law or a
subsequent stop would properly be deemed to "pertain[] to any
criminal investigation." See N.J.S.A. 47:1A-1.1.



                                       44                               A-2523-14T1
                                            D.

       Applying these principles, we are persuaded that most of

the documents sought by the reporters fall within the criminal

investigatory records exception, because they are "not required

by    law   to     be   made,    maintained       or    kept     on    file"   and      they

"pertain[] to any criminal investigation."                       See N.J.S.A. 47:1A-

1.1.

       The reporters seek documents that report officers' daily

activities, including CAD reports detailing information received

by     or   from    police      dispatchers,       log    book        notations,     daily

activity logs, daily bulletins, daily statistical sheets, tally

sheets, and vehicle logs.                 The requesters also seek various

forms of audio and video recordings (as well as transcriptions),

including recordings of the pursuit and shooting; communications

among police officers and between police officers and others;

and    recordings       made    by   mobile     video    recorders         (MVRs).       The

reporters        also   requested        various       reports        or   officer      work

product,     including         UFRs,   police      reports,       incident      reports,

operation reports, investigation reports, offense reports, and

supplemental reports.            All of these documents are exempt.                      No

law cited to the court required their creation or retention.

They pertain to a criminal investigation, to the extent the

entries     concern      or    address    an     officer's       involvement       in    the




                                           45                                    A-2523-14T1
search    for     the    attempted      burglary       suspect,       the       pursuit    of

Ashford and Bynes once they were identified as suspects, the

shooting     of    Ashford       and    arrest       of      Bynes,       the   subsequent

investigational activities related to Bynes's arrest, and the

SRT investigation of the fatal shooting.

    We      reject       NJMG's    argument          that     these       documents       are

"required by law" because the various LEAs are governed by the

DPRL and regulations, which require adoption of record retention

schedules.      N.J.S.A. 47:3-19, -20.               No person may destroy public

records under his or her control without obtaining consent under

the DPRL or regulations thereunder.                       N.J.S.A. 47:3-17.             These

provisions of law have been in place unchanged since 1953.                                 L.

1953, c. 410, §§ 5, 6.

    The Court in Nero expressly declined to read the DPRL "in

pari materia" with the RTKL.               Nero, supra, 76 N.J. at 221.                    As

discussed above, we have also repeatedly held that general, non-

specific    record      preservation       statutes          or    regulations      do    not

satisfy the "required by law" standard under the RTKL.                                    See

Daily    Journal,       supra,    351    N.J.       Super.    at    120-21      (regarding

N.J.S.A.    40:48-6,       stating      that    a    statute       that    "provides      how

. . . governmental material shall be kept in order to secure the

material against fire and ordinary theft" does not satisfy the

"required    by     law"    standard);         Shuttleworth,          supra,      258     N.J.




                                           46                                      A-2523-14T1
Super.     at    580        (stating      that        statute      or    code     that      merely

"provide[s]          how    material      which       is   in     the    possession         of   the

government,          whether       by    virtue    of      some     legal      requirement       or

otherwise, is to be maintained" does not satisfy the RTKL).

      We     reach         the    same    conclusion         with       respect    to    general

retention schedules adopted pursuant to the DPRL.                                     Were we to

reach the opposite conclusion, then the criminal investigatory

records exception would have virtually no effect.                                 Particularly

in   light      of    the        legislative      history,        and    the    RTKL     case-law

shielding criminal investigatory records, we shall not presume

that the exception is insignificant surplusage.                                See In re Civil

Commitment of J.M.B., 197 N.J. 563, 573 ("Interpretations that

render       the           Legislature's          words         mere        surplusage           are

disfavored."), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175

L. Ed. 2d 361 (2009).

      Requested             records       that        fall      outside         the      criminal

investigatory         records        exception        include      the    recording         of   the

9-1-1 call, which are "required by law" to be maintained for no

less than thirty-one days according to promulgated regulations.

N.J.A.C.     17:24-2.4.22               Also   outside       the     exception        are    motor




22
  We do not address whether a countervailing privacy claim by a
9-1-1 caller may lead to the withholding of a 9-1-1 recording,
notwithstanding that it is not exempt from the definition of
                                                    (continued)


                                                 47                                      A-2523-14T1
vehicle accident reports, which are required by law to be made

available to the public.       N.J.S.A. 39:4-131.            In addition, those

portions of the CAD records and other logs of police activity,

which do not discuss or relate to the criminal investigations,

are excepted because they do not "pertain[] to any criminal

investigation."

                                      IV.

       As discussed above, even if documents are not exempt from

OPRA as criminal investigatory records, they may be shielded

from   public    access   if   they   pertain     to    an    investigation       in

progress and release would be "inimical to the public interest."

We    have    already   reviewed    the     meaning    of    the    "pertain     to"

language.      The related issue presented on appeal is the trial

court's rejection of the State's argument that release of the

withheld documents would be "inimical to the public interest."

Although we conclude that most of the records requested were

exempt under the criminal investigatory records exception, for

the    sake     of   completeness     we     address    the        trial   court's

consideration of this issue.

       A case-by-case analysis is appropriate.               Cf. Irval, supra,

61 N.J. at 375-76 (rejecting, under common law analysis, after


(continued)
government record. See Serrano, supra, 358 N.J. Super. at 371-
72 (Coburn, J., concurring).



                                      48                                   A-2523-14T1
review      of    disputed       documents,          defendant's        claim    that       public

interest in confidentiality outweighed plaintiff's interest in

access in the case presented, but observing "nevertheless the

facts of another case may quite possibly call for a different

result").         The Irval Court stated that, as a general rule, a

trial judge should "call for and examine the report or other

record" to determine "[i]f in his sound judgment some part or

all of the information therein contained should not be revealed

. . . ."         Ibid.

       In   our     own    decision          in    Irval,      we    rejected    the     general

argument that "if inspection [by the public] of utility company

accident reports were permitted the reports would be less than

candid."         Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs., 115

N.J.   Super.       338,    345       (App.       Div.    1971),      aff'd,     61    N.J.    366

(1972).      Moreover, we found no threat to the public interest in

permitting         review        of    the        Board's      own     reports,       once     its

investigation was completed.                      Id. at 345-46.

       In    Serrano,       we    were       unpersuaded        that     release       of    9-1-1

recordings was "inimical to the public interest" assuming for

argument's        sake     they       were    deemed      to    pertain     to    an     ongoing

investigation.            Serrano, supra, 358 N.J. Super. at 367.                               In

particular, we rejected the argument that release of the 9-1-1

tape   to    a     news    organization,            and   its       anticipated       widespread




                                                   49                                   A-2523-14T1
dissemination, would interfere with the selection of a jury.

Ibid.       We   surmised      that     the    9-1-1        caller    had        no    presumed

expectation of privacy; the public's interest in release was

substantial;      any    difficulties         in     impaneling       a    jury       would    be

manageable; and we noted the attorney for the defendant agreed

that release would not deprive the defendant of a fair trial.

Id. at 367-69.

      In Courier News, we likewise rejected the argument that

release     of   9-1-1      recordings         was       "inimical        to     the    public

interest,"       where         the     defendant            asserted           that     public

dissemination      of    the    recording          would    risk     tainting         the   jury

pool, and anticipated playback at trial of an electronically

enhanced version of the recording would cause juror confusion.

Courier News, supra, 358 N.J. Super. at 381-83.                             We found that

the first concern did not present an insurmountable barrier to

selecting a fair and unbiased jury, and the second concern was

purely speculative.         Ibid.

      On the other hand, our courts have recognized "a real need

to   deny    access     where        there    is    an     ongoing        law    enforcement

investigation, or where the protection of witness information or

a witness's identity is at stake. . . ."                        Shuttleworth, supra,

258 N.J. Super. at 585 (applying common law balancing).                                       The

Court     in     Marshall        recognized           the     public            interest       in




                                              50                                       A-2523-14T1
confidentiality of ongoing criminal investigations, albeit in

the context of applying the common law right to inspect public

documents:

           The receipt by appropriate law enforcement
           officials of information concerning the
           existence    or    occurrence    of   criminal
           activities is critical to the uncovering and
           the prosecution of criminal offenses, and is
           thus crucial to effective law enforcement.
           In order that the flow of such information
           be not impeded or cut off, the law has long
           treated the information as confidential and
           privileged    against    disclosure,   thereby
           protecting witness security, the State's
           relationship    with   its    informants   and
           witnesses,      and     other     confidential
           relationships, among other things.

           [Marshall, supra, 148 N.J. at 273 (quoting
           River Edge Sav. & Loan Ass'n, supra, 165
           N.J. Super. at 543-44).]

See also Loigman, supra, 102 N.J. at 107-08 (discussing "the

vital    public    interest     in    .   .     .     the   success    of   criminal

prosecutions      and    the   protection        of    potential      witnesses    and

informants").

    In    reference       to   criminal        investigations,        the   need   for

confidentiality     generally        declines       once    the   investigation     is

closed; but the need for confidentiality, at least as to some

materials — such as those pertaining to confidential informants

— may survive.          See Keddie, supra, 148 N.J. at 54 (recognizing

"the need for confidentiality is greater in pending matters than

in closed cases," but stating "[e]ven in closed cases . . .



                                          51                                 A-2523-14T1
attorney work-product and documents containing legal strategies

may be entitled to protection from disclosure"); River Edge Sav.

& Loan Ass'n, supra, 165 N.J. Super. at 545 (noting that "even

inactive investigatory files may have to be kept confidential in

order to convince citizens that they may safely confide in law

enforcement officials") (internal quotation marks and citation

omitted);   cf.      Shuttleworth,      supra,    258    N.J.    Super.    at   585

(stating that the "same values do not survive a balancing after

the investigation is closed").

       The trial court dismissed as exaggerated the State's fear

that premature release of witness statements might taint other

witnesses' independent recollections and undermine the integrity

of the investigation into the police shooting.                   However, absent

review of Lt. McGrath's proposed ex parte, in camera submission,

we cannot be so sure.

       First,   we    are   convinced    that    where   an     investigation    is

ongoing, the public reporting of one witness's recollections may

risk    causing      another   witness    to     question     his   or    her   own

recollections, or intentionally or unintentionally conform them

to the reported reality.         Assessing the extent of the risk is a

fact-sensitive inquiry.          Notably, the United States Department

of Justice recently documented that phenomenon in its report on

the fatal police shooting in Ferguson, Missouri.                    See Dep't of




                                         52                               A-2523-14T1
Justice    Report   Regarding   the       Criminal      Investigation    into    the

Shooting Death of Michael Brown by Ferguson, Missouri Police

Officer    Darren   Wilson   (March       4,    2015)    46,   58,   available    at

http://www.justice.gov/sites/default/files/opa/press-releases/

attachments/2015/03/04/doj_report_on_shooting_of_michael_brown.

pdf   (discussing       witnesses'    alteration         of     statements     after

watching    media   reports).        In    other   contexts,      the   Court    has

recognized the fallibility of memory, and its susceptibility to

suggestion and error.        State v. Henderson, 208 N.J. 208, 268-71

(2011).    We have also endorsed prophylactic measures to prevent

witnesses, who may be in league with each other, from learning

what others have said and tailoring their testimony accordingly.

See Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233

(1992) (addressing a trial court's discretion regarding witness

sequestration).

      Second, the trial court's rejection of the State's concern

was premature, as the court did not review the documents at

issue, nor permit the State to explain, ex parte, the reasons

why   release   would    compromise       its   ongoing       investigation.      An

assessment of the public's interest will often require review of

requested documents in camera.             See Loigman, supra, 102 N.J. at

108-09; Keddie, supra, 148 N.J. at 53-54.                      In some cases, in

camera review of a Vaughn index may be appropriate, because the




                                          53                              A-2523-14T1
release of even a "detailed Vaughn index" to a requesting party

"may in some cases enable astute parties to divine with great

accuracy the names of confidential informers, sources, and the

like . . . ."    Loigman, supra, 102 N.J. at 111.

    Where      appropriate,     a    court    should    also     allow    the

governmental entity to submit an ex parte explanation as to why

disclosure is inimical to the public interest.            "Because of the

in camera nature of the review, the custodian, if necessary or

appropriate, can explain ex parte the significance of documents

and the impact their disclosure might have and the trial judge

can state his reasons for non-disclosure."           Shuttleworth, supra,

258 N.J. Super. at 589 (applying common law right to inspect).

    Applying these principles, we conclude it was error for the

court to deny the State's motion to submit the proposed McGrath

certification ex parte and in camera.          As discussed above, there

are few requested records in this case that fall outside the

"criminal investigatory record" exception; any that did would

still   be   subject   to   review   under   the   "ongoing    investigation

exception."     Moreover, the foregoing discussion is relevant to

the court's consideration of NJMG's claim of a common law right

to inspect the documents, which we discuss below.




                                     54                             A-2523-14T1
                                        V.

     With respect to section 3(b), the State contends: (1) NJMG

is   entitled        only    to   the   information        delineated    in    the

subsection, and not documents that contain such information; and

(2) the State disclosed all the information required.                   We agree

with the State as to the first point, but not as to the second.

     Had   the   Legislature        intended     section    3(b)   to   oblige    a

public agency to release records, as opposed to information, it

would have said so.           We are guided by the plain language of the

statute.    In interpreting a statute, "[i]f the plain language is

clear, the court's task is complete."               In re Kollman, 210 N.J.

557, 568 (2012).            We assign to words their generally accepted

meaning.    In re Petition for Referendum on Trenton Ordinance 09-

02, 201 N.J. 349, 358 (2010).                We must "read every word in a

statute    as   if    it    was   deliberately    chosen     and   presume    that

omitted words were excluded purposefully."                 State v. Scott, 429

N.J. Super. 1, 6-7 (App. Div. 2012) (internal quotation marks

and citation omitted), certif. denied, 214 N.J. 117 (2013).                      In

particular, we presume the Legislature acts intentionally when

it uses "particular language in one section of the statute but

omits it in another section of the same Act."                      N.J. Dep't of

Children & Families v. A.L., 213 N.J. 1, 21 (2013) (internal

quotation marks and citation omitted).




                                        55                               A-2523-14T1
       We conclude the word "information," as used in the statute,

is    not   synonymous      with        tangible      records,   such     as    written

documents,    notes,       or     recordings        that    contain    the     specified

information.     The required "information" may be conveyed in a

newly drafted press release.                 Conceivably, the information could

be provided in a public oral announcement.

       The principal provision of OPRA generally authorizes access

to    "government    records,"          N.J.S.A.      47:1A-1    (emphasis      added),

defined to include, among other things, tangible items such as

"any paper, written or printed book, document, drawing, map,

plan, photograph, microfilm, data processed or image processed

document."     N.J.S.A. 47:1A-1.1.                  The drafters recognized that

"information"       is    not     limited      to    its    tangible    forms.        See

N.J.S.A. 47:1A-1.1 (stating that "[g]overnment records" include

"information    stored       or    maintained         electronically,"         exempting

"information    received          by"    a    legislator,      "including       but   not

limited to information in written form or contained in any e-

mail or computer data base") (emphasis added); N.J.S.A. 47:1A-

2.2     (discussing        government             records    containing         personal

"information").          Section 3(b) refers only to "information" and

not specific tangible records.

       As discussed above, section 3(b) was drawn from Governor

Whitman's    executive      order.           That    order    expressly      authorized




                                             56                                 A-2523-14T1
public officials to respond orally to requests for the specified

information.       "The law enforcement official responding to oral

requests should make best efforts to respond orally over the

telephone . . . ."         Exec. Order No. 69 (Whitman), ¶ 3.                     Although

this provision was not imported into OPRA, we reject NJMG's

assertion     this      non-inclusion        imbues         "information"         with     a

different     meaning.        Therefore,        we     conclude         the    State     was

permitted     to     comply       with    section      3(b)        by    providing       the

"information" in a press release.

      However,     we     agree    with    NJMG      that    the     State     failed    to

include all the information required by the law.                          In particular,

the   State   omitted       "information        as    to     the    identity       of    the

investigating and arresting personnel and agency and the length

of the investigation."            N.J.S.A. 47:1A-3(b).              The press release

also did not include information on the "use of weapons and

ammunition by . . . the police."                Ibid.       The OAG did not "issue

a brief statement" explaining the omissions.                        Nor did the State

argue that its omissions were warranted because release of the

information       would    "jeopardize      the      safety     of       any   person     or

jeopardize any investigation in progress or may be otherwise

inappropriate to release."                Ibid.       The State shall promptly

release     the    omitted    information,           or,    upon        remand,   make     a




                                           57                                     A-2523-14T1
sufficient showing under section 3(b) to the trial court why it

should be excused from doing so.

                                                VI.

      Lastly,    we     consider          the    State's     appeal        from    the     trial

court's order compelling release of the documents pursuant to

the   common     law    right        of    access.         The       State      concedes      the

requested records are public records, subject to the common law

right to inspect.             See Nero, supra, 76 N.J. at 222 (stating

"[t]he   elements       essential         to    constitute       a    public       record     are

. . . that it be a written memorial, that it be made by a public

officer, and that the officer be authorized by law to make it")

(internal quotation marks and citation omitted).                             The State also

concedes   that        NJMG    has        the    requisite       standing         to    request

inspection.      See, e.g., S. Jersey Publ'g Co. v. N.J. Expressway

Auth., 124 N.J. 478, 487 (1991) ("[A] newspaper's interest in

keep[ing] a watchful eye on the workings of public agencies is

sufficient to accord standing under the common law.") (internal

quotation marks and citation omitted); Irval, supra, 61 N.J. at

372   (stating    that        some    showing         of   interest        is    required      to

enforce the common law right to inspect).                        The State challenges

the   court's    balancing           of    NJMG's      interest       in     the       documents

against the LEAs' interest in confidentiality.




                                                58                                      A-2523-14T1
      The principles governing the common-law balancing are well-

settled.     We discussed some of them in our discussion above of

the   balancing     under     the      "inimical      to   the     public    interest"

standard    under     the    RTKL      and    OPRA.        The    balancing       of      the

competing    interests       in     disclosure      and    confidentiality           often

involves an "exquisite weighing process by the trial judge."

Loigman, supra, 102 N.J. at 108 (internal quotation marks and

citation    omitted).         The      Loigman    Court    recognized       the    "vital

public interest in . . . the success of criminal prosecutions

and the protection of potential witnesses and informants."                                Id.

at 107-08.     Toward that end, pursuant to executive order, NJSP

investigative files may not be disclosed without court order or

executive    order.         Id.   at    107-08    (citing    Exec.      Order     No.      48

(Hughes)).

            Since there is a high degree of need for
            confidentiality in such materials, more than
            a showing of good faith and citizen status
            will be required to overcome the public
            interest in confidentiality.    It does not
            constitute a clear showing of such public
            need to say only that there may be something
            corrupt that should be exposed for the
            benefit of the public.

            [Id. at 108.]

      Loigman specifically addressed a request under the common

law   to    inspect    documents         related      to    an    OAG   audit        of    a

prosecutor's office's confidential account.                      Loigman, supra, 102




                                             59                                   A-2523-14T1
N.J. at 101.       The Court identified several factors the trial

court should consider in balancing the requester's needs against

the public agency's interest in confidentiality:

            (1) the extent to which disclosure will
            impede agency functions by discouraging
            citizens from providing information to the
            government; (2) the effect disclosure may
            have upon persons who have given such
            information, and whether they did so in
            reliance that their identities would not be
            disclosed; (3) the extent to which agency
            self-evaluation,  program   improvement,  or
            other decisionmaking will be chilled by
            disclosure; (4) the degree to which the
            information sought includes factual data as
            opposed     to   evaluative    reports    of
            policymakers; (5) whether any findings of
            public misconduct have been insufficiently
            corrected by remedial measures instituted by
            the investigative agency; and (6) whether
            any agency disciplinary or investigatory
            proceedings    have    arisen    that    may
            circumscribe the individual's asserted need
            for the materials.    Against these and any
            other relevant factors should be balanced
            the importance of the information sought to
            the plaintiff's vindication of the public
            interest.

            [Id. at 113 (citation omitted).]

      The motivation of the requester is a relevant consideration

in   the   balancing   process   under   the   common   law.     "Somewhat

different    but   related   considerations    arise    when   the   citizen

seeks access to information to further a public good" as opposed

to a private interest.        Loigman, supra, 102 N.J. at 104.              In

connection with requests for a criminal investigatory file, the




                                   60                                A-2523-14T1
Court held in Marshall that "the common-law right to inspect

public documents may not be invoked in a pending criminal case

by a defendant seeking discovery rights beyond those granted by

Rule 3:13-2 to -4."      Marshall, supra, 148 N.J. at 274.

       As we noted, the need for confidentiality in investigative

materials may wane after the investigation is concluded.                         With

respect to grand jury proceedings, for example, "our case law

has with increasing frequency expanded the right of victims and

some other persons with particular interest to gain access [to

grand jury transcripts] after completion of the criminal case."

Shuttleworth, 258 N.J. Super. at 585, n.6; see also State v.

Doliner, 96 N.J. 236, 246 (1984) (stating that "a strong showing

of a particularized need" must be made to secure access to grand

jury materials).

       We applied the Loigman principles in Shuttleworth which, as

noted above, involved the request for documents pertaining to a

Camden Police investigation into the fatal police shooting of a

suspect in custody.        Shuttleworth, supra, 258 N.J. Super. at

578.      The   investigation      in   Shuttleworth         was   closed,     and    a

determination     had    already    been      made     not    to   prosecute       the

involved officer or officers.                Ibid.     We affirmed the trial

court's   release   of   an   autopsy        report    "precisely    because       the

investigation     was    closed     without      the    filing      of   charges."




                                        61                                   A-2523-14T1
Shuttleworth, supra, 258 N.J. Super. at 595.                           On the record

presented, we were unable to determine which other documents the

trial court actually ordered disclosed pursuant to the common

law right to inspect.           We remanded for an in camera review of

documents listed on a Vaughn index.                Id. at 589-91.

      By   contrast,     in    Daily     Journal,        we    affirmed       the    trial

court's denial of access to records of a grand jury presentment

regarding alleged government corruption.                      Daily Journal, supra,

351 N.J. Super. at 127-31.             Although the investigation was also

closed,    the    trial       court      found         that    the     interests          in

confidentiality     were      warranted,      particularly        in    light       of   the

unique nature of the presentment process.                     Id. at 128-30.         Other

circumstances      may        establish           an     overriding           need       for

confidentiality, despite the closing of an investigation.                                See

Keddie, supra, 148 N.J. at 54; River Edge Sav. & Loan Ass'n,

supra, 165 N.J. Super. at 545.

      As   a   procedural     matter,     a   court      must    make     a    threshold

determination     whether      an   in    camera        review    of    documents         is

warranted.     Loigman, supra, 102 N.J. at 109.                   The review itself

may   cause    unjustified       risks       to    the    public's       interest         in

conducting effective criminal investigations.                      Ibid.       The court

may first require the submission of a Vaughn index, to identify

the   documents     at     issue,      and    the       asserted       rationale         for




                                         62                                      A-2523-14T1
nondisclosure.         Id. at 109-10.             The court may, if appropriate,

require the submission of the index in camera, as well as a

further explanation of the reasons for non-disclosure.                              Id. at

111-12.

       Applying these principles, the trial court's order granting

access to the requested materials is flawed because it is based

on    an    incomplete      record.         We    recognize    the    intense       public

interest in a case involving the possible use of excessive force

by police. The issue has arisen in cases across the country.

The    public's      need    to    know     is    not   limited    to      the    public's

interest       in    knowing      what    happened      in    a    particular           case.

Information may assist the public in evaluating the adequacy of

police procedures in general, and the claim that police force is

used       disproportionately        against       members    of   minority        groups.

Access to records related to fatal police shootings may also be

relevant to public policy debates about proposed reforms.

       In    this    case,     the   discrepancy        between      the   OAG's        press

release        and     the        investigating          detective's           subsequent

certification        raises       obvious        questions    about     what      happened

immediately prior to the shooting.                   As noted, it was asserted in

the press release that Ashford rammed a police vehicle before

being      shot.     The     detective's         certification     stated        only    that

Ashford's engine revved "as if" to force his way out from the




                                             63                                    A-2523-14T1
spot   where    the    car    was    lodged     against      the    guardrail.       The

discrepancy between these two documents also raises questions

about the reliability or accuracy of the information upon which

the press release was based.

       The requesters' and the public's interest in access must be

balanced   against      the     substantial       interests         in   conducting     a

thorough   and    effective         investigation,         untainted     by   premature

release of investigative materials.                   In order to engage in a

proper   balancing      of    interests,        the   trial      court    should    have

considered the proposed in camera and ex parte submission by Lt.

McGrath.       See Shuttleworth, supra, 258 N.J. Super. at 589.                        If

the    court    were    still       unpersuaded       that       non-disclosure      was

warranted, the court should have ordered the State to prepare a

Vaughn index, for submission in camera if appropriate.                               See

Loigman,   supra,      102    N.J.    at   108-12.         The   court    should    have

reviewed    the    documents         themselves       in    camera,      applying    the

Loigman factors, and retaining the ability to release a document

in a redacted form.

       The government's interest in confidentiality may decline

once   investigative         activity      ceases.         The     investigation     was

ongoing according to certifications submitted to the trial court

in December.      Over eight months have elapsed since the SRT began

its investigation.           It is unclear that the investigation is




                                           64                                  A-2523-14T1
still ongoing and, if it is, the nature of those continuing

activities.        The trial court should ascertain, based upon in

camera submissions if appropriate, the current status of the

investigation, as part of its balancing of competing interests.

       Conceivably, one part of the investigation may be closed,

while another part is still active.                  For example, the gathering

of evidence of alleged criminal activity by Ashford and Bynes

may have ceased, in view of their deaths.                   In other respects,

records     regarding     the     actions       of   Ashford    and    Bynes,     and

statements of Bynes, may still be relevant to the SRT's work.

Such facts may be relevant in justifying the release of some

documents, but not others.

                                         VII.

       In   sum,    we   remand    to     the    trial    court   to    reconsider

plaintiff's requests in light of the principles set forth in

this opinion.       We have identified those records that are exempt

from    OPRA    pursuant     to    the    criminal       investigatory     records

exception.      N.J.S.A. 47:1A:1.1.             With respect to the requests

for any records that fall outside that exception, the court

shall consider whether their release would be inimical to the

public interest under N.J.S.A. 47:1A-3(a).                     In so doing, the

court   shall      review,   in   camera,       McGrath's   proposed     ex     parte

certification.        However, the State shall promptly comply with




                                          65                              A-2523-14T1
its disclosure obligation under N.J.S.A. 47:1A-3(b), or make a

sufficient showing to the trial court why it should be excused

from doing so.

     The   trial    court    shall     also      reconsider    its   determination

that plaintiffs are entitled to access under the common law.                         In

so   doing,      the     court     shall      consider        McGrath's      proposed

certification.         The court shall also determine whether a Vaughn

index   should    be    prepared     and,     if   so,   whether     it    should   be

submitted in camera.         In light of those submissions, the court

shall   determine       whether   to   review      the   withheld    documents      in

camera,    and    whether     release       of     the   requested        records    is

warranted, in whole or in part, with or without redaction.

     Affirmed      in    part,    reversed       in   part,    and   remanded       for

reconsideration.        We do not retain jurisdiction.




                                        66                                   A-2523-14T1
