Contact: Howard Moskowitz – (201) 844-3700
Citing a 1994 State Medical Examiner (SME) regulation superseded by the enactment of the Open Public Records Act (OPRA) in 2001, the Office of the Attorney General (OAG) last night, in violation of the Act, refused to disclose SME records on Jennifer Towle, an inmate of the Hudson County Jail, who died on July 14. (PDF of OAG’s “Receipt” may be found here.)
It was the second time in a week. On September 7, in replying to an earlier OPRA request for SME records on Towle, OAG also unlawfully refused to provide them. The OAG custodian of records advised:
You may seek to send a new OPRA request in the future to check the status of these reports.
Hudson Civic Action (HCA) and Weehawken resident Steve Ramshur, its executive director, did so. Last night’s OAG denial includes identical language to that quoted.
One of the denied records, the external examination report, created nine weeks ago in conjunction with the autopsy, can be expected to address Towle’s head injuries, reported in, “Inmate who died had head injury, pieces of plastic in stomach, sources say ,” Jersey Journal, July 19, 2017, http://www.nj.com/hudson/index.ssf/2017/07/inmate_who_died_had_head_injury_pieces_of_plastic.html.
The 1994 regulation on which OAG relies, N.J.A.C. 13:49–3.1(b)(5), provides that a requested record may be withheld “whenever medical examiner’s records are not yet complete.”
“OAG is surely aware that OPRA plainly precludes such across-the-board investigation-in-progress denials,” said Jersey City attorney Howard Moskowitz, who represents HCA and Ramshur.
As pertinent, N.J.S.A. 47:1A-3(a), a provision of OPRA, provides that “where it shall appear that the record or records which are sought pertain to an investigation in progress by any public agency, the right of access may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest.” (Emphasis supplied.)
Moskowitz noted, that appellate court decisions have rejected the contention that release of 911 tapes meets the “inimical to the public interest” test.
In North Jersey Media Group. Inc. v. Bergen County Prosecutor’s Office, 447 N.J. Super. 182,(App. Div. 2016), the Appellate Division of Superior Court set forth as follows:
The “investigation in process” exemption, N.J.S.A. 47:1A–3, shields records that “pertain to an investigation in progress by any public agency” if such access is “inimical to the public interest.” See, e.g., Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 380 n. 5, (App. Div.2003) (rejecting claim that access to a 911 tape one year after a homicide fell within the “investigation in progress” exemption).
[Id. at 206-07.]
“This is not a close question,'” said Moskowitz. “It is unacceptable that the Office of the Attorney General ignores and violates the clearly-stated law.”
According to media reports, Towle was serving a six-month sentence on a DWI conviction. She was the second Hudson County Jail inmate to die in five weeks, immigration detainee Carlos Bonilla having died on June 10.