                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4613-14T2

SHABSI GANZWEIG,

        Plaintiff-Respondent,

v.

TOWNSHIP OF LAKEWOOD, MARY
ANN DEL MASTRO in her official
capacity as Records Custodian
and Township Clerk of the Township
of Lakewood, OFFICE OF
THE PROSECUTOR OF THE COUNTY
OF OCEAN, and MARC E. ROESSLER in his
official capacity as Assistant Prosecutor
of the County of Ocean,

     Defendants-Appellants.
_____________________________


              Argued on November 1, 2016 – Decided August 28, 2017

              Before Judges Reisner, Koblitz and Sumners
              (Judge Reisner concurring in part, dissenting
              in part).

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No. L-1292-
              14.

              William Kyle Meighan, Assistant Prosecutor,
              argued the cause for appellant Ocean County
              Prosecutor's Office (Joseph D. Coronato, Ocean
              County    Prosecutor,     attorney;     Samuel
              Marzarella, Supervising Assistant Prosecutor,
           of counsel and on the brief; Mr. Meighan, on
           the brief).

           Bathgate, Wegener & Wolf, PC, attorneys for
           appellants Township of Lakewood and Mary Ann
           Del Mastro, join in the brief of appellant
           Ocean County Prosecutor's Office.

           Walter M.     Luers   argued    the   cause     for
           respondent.

           Annmarie Cozzi, Senior Assistant Prosecutor,
           argued the cause for amicus curiae County
           Prosecutors Association of New Jersey (Sean
           F. Dalton, President, County Prosecutors
           Association, attorney; Ms. Cozzi, of counsel
           and on the brief).

           Ian C. Kennedy, Deputy Attorney General,
           argued the cause for amicus curiae Attorney
           General (Christopher S. Porrino, Attorney
           General, attorney; Mr. Kennedy, of counsel and
           on the brief).


PER CURIAM

     The   Ocean   County   Prosecutor's   Office,   the    Township     of

Lakewood, and others appeal from an October 24, 2014 order finding

they violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-

1 to -13, when they denied a Lakewood resident access to records

relating to a traffic stop.      They also appeal a March 24, 2015

grant of approximately $22,000 in counsel fees and costs. 1            The

parties asked us to delay this opinion with the hope that our



1
  We granted amicus curiae status to the County Prosecutors
Association of New Jersey and the Attorney General.

                                   2                             A-4613-14T2
Supreme Court would resolve the issues raised by way of its

recently issued opinion North Jersey Media Group, Inc. v. Township

of Lyndhurst, ___ N.J. ___ (2017).      The parties now agree that the

Court left open the accessibility of dash-cam videos containing

an audio track recorded under a local police directive, which it

will    likely   determine   when   deciding   Paff   v.   Ocean    County

Prosecutor's Office, 446 N.J. Super. 163, 183 (App. Div.), certif.

granted, 228 N.J. 403 (2016).       See N. Jersey Media, supra, slip

op. at 28-31.

       Because we agree with the majority opinion in Paff, supra,

446 N.J. Super. at 193, we affirm the access to the videos.2               To

provide a more complete record should further review be necessary,

we remand for consideration of the common law right of access to

the dash-cam videos.    Because the Ocean County Prosecutor's Office

issued a press release disclosing some information regarding the

investigation, we also remand to the trial court to determine

whether the written reports requested need to be supplied.                 N.

Jersey Media, supra, slip op. at 36. We further remand the counsel

fee award for the court to review whether time spent obtaining the

written records alone is appropriate.      Any time spent exclusively


2
  For the reasons expressed in Paff, we will not consider the
applicability of the executive order exemption, an issue raised
by defendants for the first time on appeal. Paff, supra, 446 N.J.
Super. at 190-91.

                                    3                              A-4613-14T2
to obtain records that the trial court determines need not have

been supplied should be subtracted from the total time and the fee

award adjusted.    We thus affirm in part and remand in part.

       We derive the following facts from the material supplied by

the parties.      On August 31, 2013, a Lakewood Township Police

Officer stopped a driver for an illegal left turn, N.J.S.A. 39:4-

123.   The driver and passenger provided their names.   The officer

permitted the vehicle to leave without issuing a summons, but less

than a minute later, the officer grew suspicious that the occupants

of the car had given him fictitious names, and stopped the car

again.

       The officer searched the car after the second stop and

discovered a controlled dangerous substance (CDS). This second

search was recorded by a dash-cam on another Lakewood police car

that responded to the scene, as well as one located on the car of

the officer under investigation.     The officer issued the driver

motor vehicle summonses for possession of CDS by a driver, N.J.S.A.

39:4-49.1 and making an illegal left turn.     Both the driver and

passenger were charged with the crimes of use or possession with

intent to use CDS, N.J.S.A. 2C:36-2, possession or distribution

of a hypodermic syringe or needle, N.J.S.A. 2C:36-6, hindering

apprehension, N.J.S.A. 2C:29-3, and possession of CDS, N.J.S.A.



                                 4                         A-4613-14T2
2C:35-10(a)(1).       They were indicted for hindering apprehension,

N.J.S.A. 2C:29-3, and possession of CDS, N.J.S.A. 2C:35-10(a)(1).

      After the charges were formalized in an indictment, credible

information surfaced that the officer illegally searched the car

and falsified documents to conceal the wrongdoing.                   In light of

this information, the Ocean County Prosecutor's Office dismissed

the indictment against the driver and passenger and charged the

police   officer   with   official    misconduct.           A     member    of   the

Prosecutor's Office certified that the "investigation into the

actions of [the officer] is still pending."

      Pursuant to OPRA, plaintiff Shabsi Ganzweig, a resident of

Lakewood,    sought    "copies   of   the       audio    and     video     and   all

communications to dispatch and the Watch Commander" as well as

"all reports in connection with" the August 31, 2013 traffic stop.

      Plaintiff's request to the township clerk of Lakewood was

forwarded to an assistant prosecutor who denied the OPRA request.

The   assistant    prosecutor    stated        the    requested    records       were

"criminal investigatory records under OPRA, which 'means 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.' N.J.S.A. 47:1A-1.1."          (Emphasis added).         Because the

"requested   documents    'pertain'       to    the    pending    criminal       case

                                      5                                    A-4613-14T2
against" the officer, and because the statute included an exception

for   information       pertaining      to       "ongoing   investigation[s]"        if

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

assistant prosecutor claimed the office was not required to release

the   requested    recordings     and        reports.       He   also   stated    "the

requested   records       form    the        basis    of    an   internal     affairs

investigation"     and    such    records,         according     to   the   "Attorney

General's Internal Affairs Policy & Procedures," are considered

"confidential."     The assistant prosecutor also refused disclosure

based on the "common law right of access," claiming plaintiff



3
  N.J.S.A. 47:1A-3 has two parts. "[S]ection 3(a) exempts from
disclosure records that 'pertain to an investigation in progress
by any public agency' if their examination 'shall be inimical to
the public interest.'" N. Jersey Media, supra, slip op. at 19
(quoting N.J.S.A. 47:1A-3(a)). Section 3(b) provides categories
of "information concerning a criminal investigation" that "shall
be available to the public within 24 hours or as soon as
practicable, of a request." N.J.S.A. 47:1A-3(b). Among the
required disclosures, the statute mandates the release of
"information as to the identity of the investigating and
arresting personnel and agency" and "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." N.J.S.A. 47:1A-
3(b). A public agency may, however, withhold information
otherwise required under section 3(b) when "it shall appear that
the information requested or to be examined will 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.

                                             6                               A-4613-14T2
lacked the "personal or particular interest in the material sought"

required under the common law.

     After plaintiff filed a complaint and order to show cause

alleging a violation of OPRA and the common law right of access,

defendants furnished a Vaughn index: a detailed affidavit listing

the withheld records with the claimed exemptions.    See 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).

     The same judge who decided the OPRA request in Paff issued a

written opinion finding a violation of OPRA and directing the

release of the police reports, as well as the police dash-cam

recordings of the two traffic stops.   The judge did not reach the

issue of access to the records under the common law.   He issued a

separate written opinion awarding plaintiff $21,401.10 in attorney

fees and $398.46 in costs. The parties consented to a stay pending

appeal.

     "The purpose of OPRA 'is to maximize public knowledge about

public affairs in order to ensure an informed citizenry and to

minimize the evils inherent in a secluded process.'"     O'Shea v.

Twp. of W. Milford, 410 N.J. Super. 371, 379 (App. Div. 2009)

(quoting Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty.

Dev. Corp., 183 N.J. 519, 535 (2005)).



                                 7                         A-4613-14T2
     In North Jersey Media, the Chief Justice set forth the

statutory framework of OPRA, which we need not repeat here.        N.

Jersey Media, supra, slip op. at 10-13.   We review de novo a trial

judge's legal conclusions concerning access to public records

under both OPRA and the common law.   Drinker Biddle & Reath, LLP

v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497

(App. Div. 2011).   The two issues presented here are 1) whether

the recordings constitute an official record legally required by

law to be maintained, based on Lakewood police directives requiring

the dash-cam filming of all traffic stops and 2) whether the

reports should be provided, either pursuant to OPRA, N.J.S.A.

47:1A-3(b), or the common law right of access.

                    I. ACCESSIBILITY OF RECORDS

     In supplemental briefing supplied after the North Jersey

Media decision, defendants urge us to side with the dissent in

Paff with regard to whether the dash-cam videos are required by

law to be maintained.    See Paff, supra, 446 N.J. Super. at 199

(Gilson, J., dissenting).   We instead agree with the majority for

the reasons expressed so convincingly by Judge Kennedy.     Id. at

185-87.   The dash-cam recordings were required to be made by a

local police directive and thus do not fit the definition of

"criminal investigatory records," which need not be released.



                                 8                         A-4613-14T2
     Even if not criminal investigatory records, however, the

prosecutor need not release the recordings pursuant to OPRA if

they both pertain to an ongoing investigation and it would be

inimical to the public interest to release them.           The recordings

do pertain to an ongoing investigation, but defendants have not

provided specific reasons to classify the release of the records

as "inimical to the public interest" under section 3(a). "[I]ssues

about officer safety, the reliability of ongoing investigations,

and transparency are pertinent to this inquiry."         N. Jersey Media,

supra, slip op. at 41.       The prosecutor must give "particularized

reasons."   Ibid.     Such   a   showing   is   absent   here,   where   the

prosecutor provides generalities only.

     Thus, we affirm the release of the recordings under OPRA.             As

an alternative route to affirmance, plaintiff urges us to remand

for the trial court to determine whether, similar to the dash-cam

videos in North Jersey, the recordings should be accessible through

the common law.     Public records are accessible through the common

law upon the following showing: "(1) the person seeking access

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

and (2) the citizen's right to access must be balanced against the

State's interest in preventing disclosure."          Id. at 45 (quoting

Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008)).



                                     9                             A-4613-14T2
     In North Jersey Media, the Court found the common law criteria

had been met where the media sought dash-cam videos of an officer

shooting a civilian.      Id. at 48.     Defendants correctly distinguish

North Jersey Media by pointing out that no death or use of force

was involved here and plaintiff is a private citizen rather than

the media.    Nonetheless, it could well be argued that the public's

legitimate interest in how its police officers conduct themselves

constitutes    a    "particular   interest"   in   the   information,   well

beyond that of idle curiosity, requiring disclosure under the

common law.        Rather than militate towards secrecy, "the public

interest" in an investigation into police malfeasance may well

support disclosure.       That an internal affairs investigation is

ongoing is not necessarily grounds to deny access when the incident

is already public and resulted in the dismissal of a criminal

indictment against two individuals.           The trial court on remand

should consider and rule on this common law argument to create a

full record in the event our Supreme Court adopts the position of

the dissent in Paff, holding that the police directive to activate

the dash-cam on every traffic stop does not mean the records were

required to be kept by law.        See Paff, supra, 446 N.J. Super. at

199 (Gilson, J., dissenting).




                                    10                             A-4613-14T2
                        II. PRESS RELEASE

     North Jersey Media allows the State to reveal information

from an ongoing criminal investigation, not required by law to be

kept, but required to be revealed pursuant to N.J.S.A. 47:1A-3(b),

through a press release rather than release of the actual police

reports. N. Jersey Media, supra, slip op. at 36. Plaintiff argues

that defendants "never released any information about the motor

vehicle stops and the persons arrested in connection with those

stops," and thus did not fully comply with section 3(b).         The

Ocean County Prosecutor's Office published a press release that

stated the officer's arrest was "the result of an investigation

. . . in connection with the search of a motor vehicle in August

2013 which resulted in the seizure of illegal controlled dangerous

substances."   The press release did not provide details of the

stop or the names of the driver or passenger in the stopped car.

We remand the matter to the trial court to determine whether this

press release met the requirement of section 3(b) by including all

information required to be provided.   We also of necessity remand

for a review of counsel fees with that question in mind.   If some

counsel fees accrued solely to pursue police records not required

to be released, that portion of the counsel fees should be deducted

from the total fee awarded.



                               11                          A-4613-14T2
     Affirmed in part and remanded in part for a review of the

release of police reports and counsel fees in conformity with this

opinion.




                               12                         A-4613-14T2
____________________________________

REISNER, P.J.A.D., concurring in part and dissenting in part.

    For the reasons set forth below, I concur in part and dissent

in part from the majority opinion.

    As the Supreme Court recently made clear, the dash-cam video

at issue here was a "criminal investigatory record" within the

meaning of N.J.S.A. 47:1A-1.1.   N. Jersey Media Group, Inc. v.

Twp. of Lyndhurst, __ N.J. __, __ (2017) (slip op. at 19).      The

dash-cam was activated when the officer decided to stop the

suspect's car a second time, due to a belief that the car might

contain drugs.   Hence, the video "pertained to an investigation

into actual or potential violations of criminal law."        Ibid.

Therefore, unless the video was "required by law to be made,

maintained or kept on file," N.J.S.A. 47:1A-1.1, it was protected

from disclosure under OPRA from the moment it was created.

    Because I agree with Judge Gilson's dissent in Paff v. Ocean

County Prosecutor's Office, 446 N.J. Super. 163, 194-203 (App.

Div.) (Gilson, J., dissenting) certif. granted, 228 N.J. 403

(2016), I cannot join in the majority opinion here.   I find Judge

Gilson's opinion persuasive for the reasons he cogently stated,

including the following:

              The majority's conclusion that the word
         "law" deserves a broad reading rests on the
         directive in N.J.S.A. 47:1A-1 to construe
         the provisions of OPRA "in favor of the
          public's right of access." That provision,
          however, was not meant to eliminate the
          exemptions to OPRA. To hold that an order
          issued by a municipal chief of police makes
          a document required by law, would, by
          logical extension, effectively eliminate the
          criminal investigatory records exemption.
          Applying the majority's reasoning, any time
          there is a written directive calling for a
          document to be created in a police
          department that document would be required
          by law to be made and, thus, would not come
          within the ambit of "criminal investigatory
          records." It is hard to imagine that there
          are any criminal investigatory documents
          created in a police department for which
          there is not an order, directive or
          instruction calling for that document to be
          prepared. For example, if a police
          department issued instructions that officers
          were to prepare reports concerning all
          criminal investigations, under the reasoning
          used by the majority any and all such
          reports would be subject to disclosure under
          OPRA.

          [Id. at 199.]

     I concur in the majority's decision to remand this case to

the trial court for further consideration of plaintiff's common

law claims, as well as the issues concerning the press release and

the counsel fee award. Because release of these records implicates

state-wide concerns, and for the sake of completeness, I would

also permit the Prosecutor's Office to raise, on remand, the

argument it sought to raise for the first time on this appeal,

concerning the applicability of the executive order exemption. See

N.J.S.A. 47:1A-1; N.J.S.A. 47:1A-9(a).

                                2                         A-4613-14T2
