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CHRIS CHRISTIE OFFICE OF THE ATTORNEY GENERAL CHRISTOPHER S. PO1tRIN0
Gouerr~or DEPARTMENT OF LAW AND PUBLIC SAFETY Attorney Gene~al
DIVIs1oN or Law
KIM GUADAGNO Z` 5 MARKET STREET MICHELLE L. MILLER
Lt. Gouerrcor PO Box 112 Acting Director
TxENTON, NJ 08625-0112
July 25, 2017
VIA OVERNIGHT MAIL
Clerk Law Division
Ocean County Superior Court
viceai~ ~vunty Courthouse
118 Washington Street
Tom's River, New Jersey 08754

Re: Linda Fennell, et al. v. Township of Little Egg

Harbor, et al.
Docket No. OCN-L-1513-17

Dear Clerk:

Please file the enclosed Opposition to Plaintiffs' Order to

Show Cause in the above-captioned matter. Please return a time-
stamped copy in the self-addressed stamped envelope provided.

Respectfully,

CHRISTOPHER S. PORRINO
ATTORNEY GENERAL OF NEW JERSEY

By. ~ .(y,~..,~'r
Suzan e Davies
Deput Attorney General

HUGHES ~TUSTICE COMPLEX ~ TELEPHONE: ~60~~ X33-3 85 F.ax: (60~J) 777-3607

New Jersey Is Arl Equal Opportunity Employer Prin.ted on Recycled Paper arcd Recyclable
Cc: Via overnight mail
Matthew Adams, Esq.
Fox Rothschild LLP
49 Market Street
Morristown, New Jersey 07960
(with enclosures)

Via overnight mail

Honorable Marlene Lynch Ford, A.J.S.C.
Ocean County Superior Court
Ocean County Courthouse
118 Washington Street
Tom's River, New Jersey 08754
(with enc~osuresj

Via email and overnight mail

Assistant Prosecutor Shiraz Deen
Office of the Prosecutor
Courthouse Annex Building
119 Hooper Avenue
Tom's River, New Jersey 08754

Via email and overnight mail

Robin La Bue, Esq.
Gilmore & Monahan, P.A.
10 Allen Street, 4th Floor
P.O. Box 1540
Tom's River, New Jersey 08754-1540
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State of New Jersey

CHRIS CHRISTIE OFFICE OF THE ATTORNEY GENERAL CHRISTOPHER S. PORRINO
Gouerr~or DEPARTMENT OF LAW AND PUBLIC SAFETY Atto~rtiey General
DIVISION OF LAW
KIM GUADAGNO 25 MARKET STREET MICHELLE L. MILLER
Lt. Governor PO Box 112 Acting Di~~ecto~~
TRErrTON, NJ 08625-0112

July 25, 2017

VIA OVERNIGHT DELIVERY
Honorable Marlene Lynch Ford, A.J.S.C.
Ocean County Superior Court
118 Washington Street
Toms River, New Jersey 08754

Re: Linda Fennell, et al. v. Township of Little Egg

Harbor, et al.
Docket No. OCN-L-1513-17

Dear Judge Ford:

Please accept this letter-brief, on behalf of Defendant New

Jersey Attorney General's Office, Division of Criminal Justice

("DCJ"), and Jennifer Stonerod, Deputy Attorney General serving

as OPRA counsel, in opposition to the Order to Show Cause and

Verified Complaint filed by Plaintiffs in the above-captioned

matter. As discussed more fully below, DCJ properly responded

to Plaintiffs' records request under the Open Public Records Act

("OPR.A"), N.J.S.A. 47:1A-1, et seq. The Order to Show Cause

application should therefore be denied, and Plaintiffs'

Complaint should be dismissed with prejudice.

HuGxEs JusT~cE CoMPLEx TELEPxoNE:(609)633-3985 Fes:(609) 777-3607

New Jersey Is An Equal Opporturtiity Employer P~irtited orti Recycled Pape artid Recyclable
 July 25, 2017
Page 2

PRELIMINARY STATEMENT

This matter concerns an OPRA request made by Matthew Adams

for records relating to the July 16, 2016 fatal shooting of

Patrick Fennell after police responded to a domestic disturbance

911 call from Fennell's wife, Linda. Defendant, the State of

New Jersey Attorney General's Office, Division of Criminal

Justice ("DCJ"), produced numerous records pursuant to the OPRA

request, withholding certain documents under the criminal

investigatory records exception, and redacting personal

identifying information regarding the officers on the scene.

Plaintiff then filed this current Order to Show Cause and

Verified Complaint, challenging DCJ's denial under OPRA and

invoking the common-law right of access for the first time.

DCJ responded properly to Plaintiff's OPRA request. DCJ

provided all documents responsive to Plaintiff's request which

were not exempt under the criminal investigatory records

exception, only redacting the officers' name, badge and call

numbers pursuant to N.J.A.C. 13:1E-3.2(7) and based on concerns

of officer safety. Since the New Jersey Supreme Court's

decision in North Jersey Media Group, Inc. v. Township of

Lyndhurst, decided on July 11, 2017, DCJ has produced the

unredacted version of the previously produced Little Egg Harbor

Township Use of Force Report pursuant to OPRA.

 July 25, 2017
Page 3

While the denial of criminal investigatory records under

OPRA was proper, in good faith recognition of the interests of

officer Fennell's family, DCJ evaluated Plaintiffs' request

under the common law right of access after this issue was raised

for the first time in the Complaint. As discussed more at

length below, DCJ has produced additional responsive documents

under the common law that were not available under OPRA.

Plaintiffs wrongly assert that they were entitled to core

criminal investigatory records under OPRA. Plaintiffs

erroneously argue that the records sought were all created

before a criminal investigation began. Contrary to those

assertions, the criminal investigation began at the moment Linda

Fennell called 911 to report that her husband had fired shots

within the home.

Under the common law, Plaintiffs stated interest is

learning why officer Fennel died. Consistent with the Attorney

General's directive, the Attorney General's Office issued a

detailed statement as to the facts and circumstances of officer

Fennell's death. Now that Plaintiffs have supplemented their

OPRA request with a request under the common law, DCJ has

produced additional records to the family which satisfies this

stated interest.
 July 25, 2017
Page 4

FACTUAL AND PROCEDURAL HISTORY

On July 16, 2017, at approximately 6:52 p.m., Little Egg

Harbor Township police were dispatched to the Fennell home after

Linda Fennell called 911. See Verified Complaint, Ex. A. Linda

Fennell stated that her husband was drunk and she heard her

husband shooting a gun in the basement of the home. See

Verified Complaint, Ex. H. Linda Fennell stated that she was

"afraid to go downstairs" and stated to the 911 operator that

"he's been drinking and he pushed me away and I'm like really

scared." Ibid.

When police responded to the home, Patrick Fennell had left

the house and was in a wooded area behind his home. Id.

Shortly afterwards, the Ocean County Regional SWAT Team was

dispatched to the scene. Id. Negotiators were also brought to

the scene, and were unsuccessful in attempting to communicate

with Fennell. Id. While the SWAT team had Fennell surrounded,

Fennell raised a revolver towards officers and failed to comply

with orders to put the gun down. Id. Fennell pointed the gun

at the officers causing an officer to fire multiple rounds at

Fennell. See Verified Complaint, Ex. A. Fennell was pronounced

dead at the scene. Id.

The shooting was investigated by the Attorney General's

Shooting Response Team ("SRT") Id. SRT found that police

 July 25, 2017
Page 5

responded to the Fennell home after "Fennell's wife called 911

at 6:52pm to report that her husband was drunk and that she had

heard shots fired in their basement." See Ex. A. Members of

the Ocean County Regional SWAT team were dispatched to the

scene. Id. "The scene was dark, and the weather was hot and

muggy. The SWAT team had to use a combination of flashlights,

generator lights, rifle mounted lights, night vision technology,

and thermal imaging technology to visually locate Fennell, who

was moving around in a wooded area." Id. As the SWAT team

approached officer Fennell, they "continued to try to speak to

him and get him to cooperate, telling him that they were there

to help. Fennell did not cooperate at any time during the

event." Id.

when the officers were approximately 20 to 25 yards away

from Fennell, who had been lying under brush and leaves, he "sat

up" and multiple officers witnessed Fennell "raise the silver

revolver to a ready position, with the barrel pointed up." Id.

Officers commanded Fennell to show his hands and put the gun

down. Id. Multiple officers stated that Fennell ignored the

commands and "pointed the gun in the direction of the officers

directly in front of him." Id. An officer then shot multiple

rounds at officer Fennell. Id. Before pointing his gun at the

 July 25, 2017
Page 6

officers, officer Fennell stated "Don't come any closer. This

is going to be a bad day." Id.

Evidence collected by SRT was presented to the Grand Jury,

including officer Fennell's revolver, which was partially

loaded, had been struck by a bullet and was damaged on the

front-facing portion of the revolving chamber of the gun,

consistent with the gun having been pointed directly at the

officers. Id. Two .22 caliber casings from bullets fired from

officer Fennel's revolver were found in the basement of the home

and toxicology tests confirmed that Fennell was intoxicated.

Id. The Grand Jury voted "no bill" declining to indict the law

enforcement officer who shot Fennell. Id. On February 13,

2017, the Attorney General's Office issued a press release

detailing the events of that night and the jury's return of a

"no bill." Id.

On March 30, 2017, Matthew Adams, Esq. filed an Open Public

Records Act ("OPR.A") request with the Attorney General's Office,

Division of Criminal Justice, seeking the following:

(1) Any recorded 911 or other calls for service

which resulted in the law enforcement
response at and around the Fennell home on
July 16, 2016;

(2) Any records reflecting, memorializing, or

relating to the determination to engage the
Ocean County Regional SWAT team in the
response that evening;
 July 25, 2017
Page 7

(3) Any recorded dispatch and other radio

communications pertaining to the law
enforcement response at and around the
Fennell home on July 16, 2016;

(4) Any use of force and/or other reports

generated by responding officers;

(5) Any recordings of any dash mounted or body

mounted devices employed or worn by
responding officers;

(6) A complete description of all equipment on

the scene from responding agencies,
including, but not limited to, weapons,
vehicles, communications, lighting, and
audio/video equipment;

(7) A copy of the recorded police interview of

Linda Fennell;

(8) A copy of all autopsy, toxicology, blood-

alcohol level, and other forensic testing
reports relating to all analyses undertaken
on the deceased's Fennell's body;

(9) A complete listing of all officers and

agencies that responded to the scene at and
around the Fennell home on July 16, 2016;

(10) A complete copy of the policies and

procedures manual for the Ocean County
Regional SWAT team.

[See Verified Complaint, Ex. C~

DCJ responded to the request on April 10, 2017 See

Verified Complaint, Ex. H. In response to item #l, DCJ produced

the 911 transcript, redacting content from unrelated calls. Id.

In response to item #2, DCJ provided two Call for Service Logs

from Little Egg Harbor Police Department and one from Ocean
 July 25, 2017
Page 8

County Sheriff's Office , but denied the remainder of the request

as seeking criminal investigatory records. Id. Item #3 was

denied as a criminal investigatory record. Id. In response to

item #4, DCJ produced Little Egg Harbor Township Police

Department Use of Force Report. Id. In response to items #5,

6, 9, and 10, DCJ responded that no responsive documents

existed, or in regards to items 6 and 9, no one responsive

document existed. Id. Item #7 was denied pursuant to N.J.S.A.

47:1A-l.l. Lastly, in response to Item ##8, autopsy and two

toxicology reports were produced. Officer names, badge and call

numbers, were redacted from the documents pursuant to N.J.A.C.

13:1E-3.2(7) and for officer safety. Id.

Plaintiffs now bring this Order to Show Cause and Verified

Complaint, which invokes, for the first time, a claim for

records under the common-law right of access. [nThile DCJ

maintains that Plaintiffs' request was properly denied under

OPRA, DCJ reviewed Plaintiffs' request under the common-law in

response to Plaintiffs' new request. As such, DCJ has produced

the following documents pursuant to Plaintiffs' request under

the common-law that were properly withheld under OPRA1: (1) CAD

Report from Ocean County; (2) CAD Abstract from Little Egg

Harbor Township; (3) Use of Force Report, unredacted; (4)

1 The documents were produced to Matthew Adams via overnight mail

on July 7, 2017 and July 25, 2017.
 July 25, 2017
Page 9

Consent to Search of 35 Sycamore Drive; (5) Preservation Letter

for Fennell Phone; (6) Autopsy Report with photos; (7) NJSP

Ballistic Report and Receipts; (8) NJSP Forensic Lab LIMS,

Receipts and Reports - DNA; (9)Statement of Linda Fennell; (10)

Ocean County SWAT RADIO and Transmissions, unredacted; (ll)

Little Egg Harbor Township Radio transmissions, unredacted; (l2)

911 audio, unredacted; (13) NJSP Crime Scene Photos; and (14)

Crime Scene Log, unredacted.

POINT I

THE WITHHELD RECORDS, ALL CLEARLY RESULTING

FROM A CRIMINAL INVESTIGATION, ARE EXEMPT
UNDER OPR.A BECAUSE THEY ARE CRIMINAL
INVESTIGATORY RECORDS

The records at issue in this matter are categorically

exempt under OPRA as records of a criminal investigation.

N.J.S.A. 47:1A-l.l. A "criminal investigatory record" is

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." N.J.S.A. 47:1A-1.1. This OPRA

provision continues the longstanding policy in this State that

public access is not granted to the investigative files of law

enforcement agencies.
 July 25, 2017
Page 10

Initially, DCJ provided the Use of Force Report ("UFR"),

redacting officer names. This denial was proper because at the

time of the denial, the Appellate Division in North Jersey Media

Group, Inc. v . Township of Lyndhurst, et al. , 441 N.J. Super. 70,

105-06 (App. Div. 2015) held that UFRs were not subject to

disclosure under OPRA, and that it was appropriate to redact

officer's names for UFRs. As such, DCJ complied with the law as

it existed at the time it responded to the OPR.A request. However,

following the New Jersey Supreme Court's ruling in Lyndhurst on

July 11, 2017 holding that UFRs are not criminal investigatory

records because they are "required by law to be made," Plaintiff

was provided the unredacted UFR. As such, this issue is now moot

before this Court.

Although the Supreme Court in Lyndhurst found that UFRs

were not categorically exempt as a criminal investigatory

records, the Court reaffirmed the well-established and long-

standing notion that "work product" of law enforcement agencies'

investigations, including investigation reports and witness

statements that pertain to a criminal investigation are clearly

and categorically exempt from OPRA as criminal investigatory

records. North Jersey Media Group v. Lyndhurst, No. 076184 A-35-

15, N.J. (July 11, 2017) (slip op. at 31) The same
 July 25, 2017
Page 11

clearly applies to the investigative records of the July 16,

2016 incident at the Fennell home withheld by DCJ.

In this matter, Plaintiffs, in challenging DCJ's assertion

that the requested records are "criminal investigatory records,"

argue that the records "were created long before a criminal

investigation began." See Plt's brief, pp. 9-10. This assertion

is incorrect. Officers responded to the Fennell home after

receiving a 91l call from Linda Fennell reporting a domestic

incident in which Linda Fennell reported that her husband had

fired shots within their home and had pushed her away as she took

bullets from him. See Verified Complaint, Ex. A. As a result,

Little Egg Harbor Township police were dispatched to the home.

Ibid. The criminal investigation began as soon as police received

the 911 call and responded to the home. See Lyndhurst, supra, 441

N.J. Super. at 104-05. (finding that records generated as early as

the initial pursuit of a suspect are criminal investigatory

records). As such, all records generated related to this incident

were related to a criminal investigation and properly withheld

under the well-established criminal investigatory exception under

~~...
 July 25, 2017
Page 12

DCJ HAS PRODUCED DOCUMENTS UNDER THE COMMON-

LAW TO SATISFY PLAINTIFFS' STATED INTEREST

Plaintiffs now also argue that they are entitled to the

records under the common-law. In order to gain access to public

records under the common law, three criteria must be met:

(1) the records must be common-law public

documents; (2) the person 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.

[Keddie v. Rutgers, 148 N.J. 36, 50

(1997)(internal quotation marks and
citations omitted).]

In this matter, DCJ does not disagree that the requested

investigative records are "common-law public documents," or that

Plaintiffs have the requisite standing to request the records.

Rather, the crux of this matter is the third criterion, which

requires that "a plaintiff's interest in disclosure of the

relevant documents must outweigh the State's interest in non-

disclosure." Educ. Law. Ctr., 198 N.J. 274, 303 (2009).

Plaintiffs' March 20, 2017 records request was submitted to

DCJ under OPR.A, and Plaintiffs invoked the common-law for the

first time through this current Order to Show Cause. In

response, without waiving any available common-law defenses, and

in a good faith effort to resolve aspects of this litigation,

 July 25, 2017
Page 13

DCJ reviewed Plaintiffs' records request under the common-law.

DCJ then produced the following responsive documents to

Plaintiffs under the common-law: (1) CAD Report from Ocean

County; (2) CAD Abstract from Little Egg Harbor Township; (3)

Use of Force Report; (4) Consent to Search of 35 Sycamore Drive;

(5) Preservation Letter for Fennell Phone; (6) Autopsy Report

with photos; (7) NJSP Ballistic Report and Receipts; (8) NJSP

Forensic Lab LIMS, Receipts and Reports - DNA; (9)Statement of

Linda Fennell; (10) Ocean County SV~TAT RADIO and Transmissions;

(11) Little Egg Harbor Township Radio transmissions; (12) 911

audio; (13) NJSP Crime Scene Photos; (14) Crime Scene Log; and

(15) List of all officers/agencies involved in the

investigation.

Initially, Plaintiffs' argue that they are entitled to

Linda Fennell's statement under the common-law. Linda Fennell's

statement has been produced under the common-law, and as such,

this argument is now moot. In addition to Linda Fennell's

statement, additional responsive documents to Plaintiffs'

records request are being produced, including the unredacted Use

of Force Report, full autopsy report including graphic photos of

officer Fennell, as well as the unredacted Ocean County and

Little Egg Harbor radio transmissions. The radio transmission

audio is approximately five hours long, and includes all police

 July 25, 2017
Page 14

communication from the time of the initial police response to

the Fennell home until the time the scene was cleared.

Plaintiffs assert that they, and the public, have a common

law interest in knowing the circumstances surrounding Patrick

Fennell's death. By producing the audio which details all

police communication surrounding the; incident, as well as the

additional responsive documents listed above, Plaintiffs' stated

common law interest is satisfied. All responsive documents to

Plaintiffs' request have been produced. Investigative reports

and officer statements, which were not specifically requested in

Plaintiffs' request,l are being withheld because DCJ's interest

in maintaining the Confidentiality of police tactics outweighs

Plaintiffs' stated interest in the records, which has been

satisfied. Indeed, in Lyndhurst the Supreme Court reaffirmed

that requestors are not entitled to those types of records under

the common law, holding that "when it comes to the disclosure of

investigative reports, witness statements, and other comparably

detailed documents[,]" "the State's interest outweighs" the

requestor's interest. North Jersey Media Group v. Lyndhurst,

No. 076184 A-35-15, _ N.J. (July 11, 2017) (slip op. at 47).

' The fact that Plaintiff did not request investigative reports
and witness statements in the March 30, 2017 OPRA request at
issue in this matter is evidenced by Matthew Adams recent OPR.A
request, dated July 11, 2017, which seeks all witness statements
and police reports pertaining to the shooting of Patrick Fennell.
 July 25, 2017
Page 15

Therefore, DCJ has properly produced all items responsive

to Plaintiffs' request that they are entitled to under the

common-law.

DEFENDANT STONEROD SERVES ONLY AS OPR.A

COUNSEL AND THEREFORE SHOULD BE DISMISSED

In addition to the State of New Jersey Attorney General's

Office, Plaintiffs name as a Defendant Jennifer Stonerod, OPRA

Counsel at the Division of Criminal Justice. In their

Complaint, Plaintiffs' state that Jennifer Stonerod is "the

individual designated as the OPRA Custodian for the AG's

Office." See Verified Complaint, p. 3. Ms. Stonerod is not the

records custodian, and only serves as legal counsel within the

Division on OPR.A matters. As such, she is improperly named as a

defendant and should be dismissed as she is not the records

custodian, nor tasked with producing records in response to OPRA

requests.
 July 25, 2017
Page 16

CONCLUSION

For the reasons set forth above, the Order to Show Cause

and Verified Complaint should be dismissed with prejudice.

Respectfully submitted,

CHRISTOPHER S. PORRINO
ATTORNEY GENERAL OF NEW JERSEY

By: ..
S e avies
Deputy ttorney General
 CHRISTOPHER S. PORRINO
ATTORNEY GENERAL OF NEW JERSEY
Richard J. Hughes Justice Complex
25 Market Street
PO Box 112
Trenton, NJ 08625-0112
Attorney for State Defendants

By: Suzanne Davies (07522013)

Deputy Attorney General
(609) 633-3985

LINDA FENNELL,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION - OCEAN COUNTY
DOCKET NO. OCN-L-1513-17
v.

C~.vil Action
TOWNSHIP OF LITTLE EGG
HARBOR ,
Et al.,
CERTIFICATION OF SERVICE
Defendants .

I hereby certify that the original and one copy of

Defendant, Attorney General's Office, Division of Criminal

Justice, Opposition to Plaintiff's Order to Show Cause were

filed with the Clerk of Ocean County. I further certify that

copies of the opposition were served by electronic and overnight

mail upon the following counsel of record in accordance with R.

_ 1:5-2 to:

Matthew Adams, Esq.

 Fox Rothschild LLP
49 Market Street
Morristown, New Jersey 07960
(with enclosures)

Assistant Prosecutor Shiraz Deen

Office of the Prosecutor
Courthouse Annex Building
119 Hooper Avenue
Tom's River, New Jersey 08754

Robin La Bue, Esq.

Gilmore & Monahan, P.A.
10 Alen Street, 4 17 Floor
P.O. Box 1540
Tom's River, New Jersey 08754-1540

CHRISTOPHER S. PORRINO
ATTORNEY GENERAL OF NEW JERSEY

By. 1
Suzann avies
Deputy torney General

Dated. ~ ~~ j ~