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Judge orders release of 911 tapes in police misconduct case

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  1. Freedom of Information

    NMU         NEW JERSEY         Freedom of Information         Apr 5, 2002    

Judge orders release of 911 tapes in police misconduct case

  • A superior court judge required the immediate release of emergency service tapes but denied records in an ongoing police investigation until after the close of criminal proceedings.

A superior court judge in Toms River held April 2 that a local police department must release 911 tapes to the press upon request, but denied the release of police reports until after the completion of a criminal trial involving three police officers.

The Asbury Park Press asked the Lakewood Police Department for 911 tapes and the police records of an incident involving an undercover police chase and alleged police misconduct.

Thomas Jacobs was driving through Lakewood Township when he was pursued and detained by undercover Lakewood police officers. Jacobs said he thought that at the time he was being chased he was being followed by “kids in a van.” He called 911. When the officers stopped him, Jacobs said they forcibly removed him from his car, threw him to the ground and kicked and punched him.

The incident was reported to the Ocean County Prosecutor’s Office.

When police denied the Asbury Park Press access to the 911 tapes and police reports, the newspaper sued the department.

The Press argued that the tapes of Jacobs’ cellular phone communications were available under both statutory and common law. The police department claimed the tapes fell under two exemptions: information collected for an ongoing investigation and an executive order protecting criminal investigation records.

Judge Eugene D. Serpentelli found that 911 records did not fall under the exemptions because they contained some information which the executive order actually requires be disclosed, such as the circumstances surrounding an arrest, including the time, place and any pursuit.

The judge rejected the state’s argument that the release of 911 records would discourage people from making such calls. The judge found there was no expectation of privacy when a 911 call is made because “the average person assumes that a tape is being made of the call.”

The judge also held the tapes are part of evidence needed to determine whether there has been official misconduct.

However the judge held that police reports did not fall under the definition of public records under New Jersey’s current Right to Know Law because they were not required by law to be made, maintained or kept on file. Thus, they were not required to be released before the end of the police officers’ misconduct trial.

The judge said that recent revisions of New Jersey’s Right To Know Law, which become effective July 8 would not substantially change his ruling.

The Reporters Committee for Freedom of the Press, along with the New Jersey Press Association and the Society of Professional Journalists, filed a friend-of-the-court brief in this case, arguing that denial of access to this type of information will have a far-reaching effect on the media’s ability to report upon criminal activity and misconduct by public officials.

(Asbury Park Press v. Lakewood Township Police; Media counsel: John C. Connell, Archer & Greiner, Haddonfield, N.J.; Amici Curiae: Thomas J. Cafferty and Arlene M. Turinchak, McGimpsey & Cafferty, Somerset, N.J.) MM


© 2002 The Reporters Committee for Freedom of the Press

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