FCC Approves Order Preempting Municipal Control of the Public Right-of-Way


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correct size blogOn Wednesday, the Federal Communications Commission (“FCC”) held a public meeting where it voted to approve a Declaratory Ruling and Third Report and Order (“Order”) that substantially limits local control of public rights-of-way (“ROW”). As we previously reported, the Order applies aspects of the Federal Communications Act to municipal review of applications for small cell wireless facilities within the municipal ROW.

The Order restricts the kinds and types of limitations and standards that local governments can set for wireless facilities seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic, safety, and system resiliency purposes.  Standards must be in writing and cannot be unreasonably burdensome.

The Order creates a “shot clock” for reviewing applications for small cell wireless facilities.  Municipal governments must review applications for collocation on preexisting structures within 60 days, and a deadline of 90 days for new builds.  The review period applies for batched applications the same as they would for individual applications. While applications will not be deemed granted if a shot clock timeline is missed, the Order now allows wireless site applicants to seek expedited injunctive relief in court within 30 days of the missed deadline. The shot clock can be paused if the municipality notifies the applicant within 30 days of receiving the application that the application is substantially incomplete.

In response to local advocacy,, the Order will go into effect 90 days after it is published in the federal register, instead of the usual 30 days.  The extended effective date was included in order to ease the burden on local governments needing to adapt to the changes.  The Order can still be opposed through a filing of petitions for reconsideration (“PFR”).  A petition for reconsideration requests that the commission review an action it has already taken. This is different from submitting comments during the open comment period. Given the controversial nature of the FCC’s action numerous PFR’s are expected to be filed.  We will continue to keep you updated on this matter should there be further developments.

Local governments are the stewards of public rights-of-way, which are used by telecommunications providers to build their own networks.  By narrowing the window and resources for evaluating small cell applications, the FCC is hindering local government’s ability to fulfill public health and safety responsibilities during the construction and modifications of small cell facilities. For more information on the Order and its impact, please see a recent post from our national affiliate, the National League of Cities.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.


Update on Marijuana Legalization and the Local Option Tax


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correct size blogAs you are aware, Governor Murphy identified the legalization of the adult use of marijuana as a top priority for his Administration.   Senate President Sweeney also supports this and has publicly indicated that there is sufficient support in the Senate to advance enabling this legislation; and, Speaker Coughlin recently stated that he also supports legalization.     With the State’s three leaders all on record in support, it is virtually certain that legalization will be realized in the near future.   Significant issues remain, however, and there is some disagreement over the form of such a bill, though it is expected that a bill will head to the Governor this fall.

The purpose of this letter is to update mayors on where this issue stands,   the role the League has taken and our suggestions and, for your consideration and action, League taskforce recommendations to the Legislature


While a number of bills have been introduced, it is best to view them as conversation starters.      No one has yet to see a consensus bill.   We note that every bill and concept proposed for discussion includes an “opt-out” provision for municipalities, meaning marijuana would be legalized in all municipalities unless a municipality takes affirmative action to opt-out.      Further, recent press reports indicate a consensus among legislative sponsors on a number of provisions, including:

  • A local option tax of up to 2% to be retained by the host municipality;
  • The creation of a 5-member commission to oversee marijuana regulations, permitting and an enforcement division. The Governor would appoint three members, and the Legislature would appoint the remaining two; and,
  • Automatic eligibility for those convicted of marijuana possession for criminal record expungement; individuals would still need to go through a process for expungement.

We note that these press accounts indicate support among the involved Legislators and do not reference the Murphy Administration.

Other press accounts and word of mouth indicate that a bill to expand the State’s medical marijuana program would move concurrently with an adult, recreational use bill.     Additionally, it is generally reported that a total tax on the industry would be about 25%, not including any local option tax.   It is also likely that there will be four distinct types of licenses:  1) growth/cultivation; 2) manufacturing; 3) transportation/distribution and, 4) retail. It is our understanding that homegrown products will not be authorized.     We expect that a municipality will have the option to opt-out of any or all of the four license types.

What the League Has Done

Earlier this year, League President Jim Cassella, Mayor of East Rutherford, appointed a Task Force on this issue to protect municipal interest.   The Task Force subdivided into four subcommittees to examine the discrete issue, including Budget and Finance, Land Use, Quality of Life and Public Safety.   League staff reached out to its counterparts in other states to learn what worked, what did not and their advice on how to proceed.    While there was no consensus on the larger legalization issue, there were some recommendations and guiding principles developed to safeguard the interests of local governments and property taxpayers in the event, now likely, that adult, recreational use of marijuana is legalized.

The League reached out to partners such as the New Jersey Urban Mayors Association (NJUMA) and the New Jersey Conference of Mayors (NJCM) and met with the prime Senate sponsor, Senator Nick Scutari in early August.

The League, NJUMA and NJCM followed up with the Senator about a week later with a series of comments and recommendations.   In our correspondence, we stated that all three organizations are generally supportive of the expansion of medical marijuana and decriminalization, but are not prepared to support the current legislative proposals for the legalization of recreational marijuana.   And if such a bill advances there should be provisions that support and protect the interest of New Jersey’s municipalities.   In doing so, we offered the following comments:

Revenues and the Local Option Tax

Recognizing that municipalities will likely only opt in with assurance of projected revenues, we recommend the following:

  • Any legislation authorizes municipalities to implement a local excise tax of up to 5% on any or all of the four proposed licenses;
  • Licensees should be required, as a condition of the license, to enter into a host benefit agreement with the municipality. The framework for this would be similar to the model used in Massachusetts;
  • There should be a mechanism in place to verify that the revenues collected as a result of a local excise tax are being returned appropriately to the host municipality;
  • Licensees should also be subject to any local license or mercantile fees, as would be the case with any other business.
  • Of revenues collected by the state, we further suggest the following:
    • Portions of this funding be dedicated for specific purposes to assist local law and health enforcement and public safety, including funding for Drug Recognition Experts (DREs); and,
    • The development of a statewide DUI protocol.

Comments:  As noted above,   the Legislative sponsors, according to press reports, agree with a 2% local option tax.    A municipality which chooses to opt-in should be assured that revenues will offset the costs of enforcement. Otherwise, other taxpayers in the community will subsidize the industry.      Based on our discussions with Mayors and with our fellow Leagues in states that have legalized marijuana, we believe that 2% is insufficient to offset costs and is an incentive for municipalities to opt-out.

We urge you to contact your Legislators and ask that if they support legalization, to also support an up-to 5% local option tax.

Local Enforcement of Land Use, Zoning and Planning, and Health

We appreciate that municipalities will have the ability to opt-out.     We asked that bill language be clear in stating that all local zoning controls remain in place as well so that a level playing field is maintained amongst all businesses in the community, including:

  • That bill language also be clear that “right to farm” does not apply to any of the four proposed licenses;
  • Clarification that cultivation is not permitted on farmland preserved with taxpayer dollars; and,
  • Clarify that retail license does not transfer for special events, such as a farmers market.

As with land use controls, we ask for language to assure that local health codes continue to govern.   Health officers should be afforded the same rights to inspect and begin appropriate disciplinary action for violations.

Comments:     The ability to opt-out is critical as it provides local votes their final say on legalization.   But the ability to opt-out alone is not sufficient to protect local enforcement of zoning.  While none of the current bills extend right-to-farm protections to the industry, specific language to clarify that point, is appropriate.   It should be made clear that local controls and enforcement prevail for this industry, just as it does with any other.


While there may not be a consensus opinion amongst municipalities on legalization, we recognize that legalization of recreational use is almost a certainty in the near future.    As a result, working with the NJUMA and NJCM, we have advanced a number of common-sense recommendations to keep taxpayers whole, protect local planning and retain the autonomy of local health officers.

Please take immediate action:  speak to your Legislators on this issue now and let them know how you feel.      There are issues apparent in any legislation that would legalize the recreational use of marijuana that would impact all municipalities regardless of whether you would opt-in or opt-out.  So no matter your position on the issue, please advise your Legislators of the concerns and recommendation covered in this correspondence.   In particular, it is critical to communicate that the suggested 2% option tax is insufficient and should be changed so that municipalities can choose to implement an up to 5% fee.

James Cassella, NJLM President              Colleen Mahr, NJLM First President                  Mayor, East Rutherford                             Mayor, Fanwood

James Perry, NJLM 2nd Vice President               Janice Kovach, NJLM 3rd Vice President Committeeman,  Hardwick                                    Mayor, Clinton Town

 Contact: Michael F. Cerra, Assistant Executive Director, mcerra@njslom.org or 609-695-3481 x120

FCC Proposed Order Dramatically Limits Control Over Municipal Rights of Way



town-crier_facebookOn Wednesday, the Federal Communications Commission (“FCC”) released draft text of a Declaratory Ruling and Report and Order  (“Order”).  If approved, the Order would severely restrict local government control over their rights of way (“ROW”) by specifically preempting local siting processes for small cell wireless facilities.

The Order is a direct result of the FCC’s Broadband Deployment Advisory Committee (“BDAC”) hearings, which we have alerted our members to last summer, and earlier this year.  As was feared, the FCC has accepted the BDAC’s recommendations despite those recommendations coming from a committee composed almost exclusively of industry representatives, and operating under the false assumption that local regulations act as a prodigal barrier to small cell deployment.

The Order would definitively conclude that Sections 253 and 332(c)(7) of the Federal Communications Act (“Act’)would apply to state and local governments’ review of applications to place small cell wireless facilities within the municipal ROW.  These sections of the Act, which are currently not considered applicable to small cell facilities, restrict what conditions and standards local governments can place on those seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic and system resiliency purposes.

In addition, the Order seeks to limit the fees that state and local governments can charge for processing applications.  The Order would limit application to the actual cost of review, a number which is often difficult to determine.  Furthermore, the Order identifies special fee levels for certain small wireless facility deployments which presumptively invalidates a higher fee and would place the burden on the reviewing entity to prove the necessity of the higher fee.

The Order also establishes a new “shot clock” for review of small cell wireless facilities.  Under the proposed Order review of applications would need to be completed within 60 days for collocation on preexisting structures and 90 days for new builds.  More drastically, the Order would find that the shot clock begins at the date of a pre-application meeting.  These changes severely limit the time in which municipalities can review applications and would also start the time for review before complete information is available.   While the shot clock is shortened, there is no indication from the Order that an application would be deemed granted as a remedy if a shot clock is overrun.

This Order is still a draft and will need to be voted on and approved at the next Open Commission Meeting, scheduled for Wednesday, September 26, 2018.  Efforts to advocate against these preemptive changes can take place until September 18, 2018, but after that federal law prohibits additional lobbying until after the proposal is published in the Federal Register.  A vote to approve the changes is expected to succeed, at which point local governments may file petitions for reconsideration or appeal the Order.

We are monitoring the work of our national affiliates at the National League of Cities (“NLC”) on this matter, which is preparing a template letter that our members can use as a base for filing their own objections with the FCC.  We will share this letter template once it has been finalized by the NLC for you to use to express your concern with the Order to the FCC, our Senators, and Congressional delegation.

If you would like more information on small cell wireless systems and the application of federal law to local review of siting applications, please review the Bureau of Municipal Information white paper, Wireless Systems in the Right of Way, What You Need to Know.  You can also find more information on how to plan for small cell wireless infrastructure in the League’s daily update from August 27, 2018, which includes a link to NLC’s model ordinances.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.




Appellate Division Upholds Municipal Ordinance Charging Inspection Fee to Landlords



Last week, in Cona v. Twp. of Washington, et al., the Appellate Division, in a published decision, rejected challenges to municipal ordinances that require landlords to pay a fee to offset the costs of annual inspections and registration of rental units.    The Cona decision examined the Appellate Divisions’ 2015 ruling in Timber Glen, which found that municipalities are not authorized under state law to license landlords and charge an annual fee for the license.

The Cona court rejected assertions from the challengers that the fee charged for rental unit inspections was a de facto licensing fee, noting that licensing and inspections were distinct from one another and that the fees charged for inspections and registrations were reasonably related to the municipalities’ exercise of their obligation to promote the safety and welfare of their residents.  Although the court did have concerns with continued use of the term “license fee” in some municipalities’ ordinances, as it may lead to confusion, it nevertheless saw through the name and properly determined that the additional fee was charged to offset the costs of inspections and permissible under law.

You should review this decision with your municipal attorney and construction code official for more information on how the ruling will impact your municipality.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.

Governor Conditionally Vetoes Three Temporary Disability/Family Leave Bills



correct size blogOn August 27, Governor Murphy conditionally vetoed A-2762, A-4118, and S-844 all of which address various aspects of the temporary disability (“TDI”) and family leave (“FLI”) insurance systems.

A-2762, requires that when a covered individual applies for TDI benefits based on a disability resulting from pregnancy or the birth of a child, the plan administering the individual’s benefits must automatically process an application for that individual to its paid FLI benefits program, unless an individual affirmatively opts out.  This is done to allow the application for FLI benefits to be processed in a way that, if approved, would allow for FLI benefits to begin immediately following the end of TDI benefits.  In any case, an individual, upon notice, can postpone or opt out of receiving the FLI benefits, immediately following receiving TDI benefits.

A-4118, permits individuals to submit TDI and FLI claims up to 60 days prior to the commencement of leave if the individual knowns in advance when the leave will begin. The Division of Unemployment and Temporary Disability Insurance would be required to immediately process the claim and pay the claim upon the commencement of the leave. This would apply to leaves that include, but are not limited to, pregnancy, childbirth, child care after birth or adoption, scheduled medical procedures, treatments or appointments for the individual or a family member, or scheduled ongoing care for the individual or a family member.

S-844, establishes a partial return to work program which allows employees to receive TDI benefits on a reduced basis, if that employee is otherwise eligible for TDI benefits, but only able to return to work on a reduced basis while recovering from a disability.   An employee is eligible to receive the partial TDI benefit for a period of eight weeks, but is eligible for an extension after review for a maximum of 12 weeks.  Employers are not required to permit a worker to come back on a reduced basis but if the employee can return on such a basis and the employer nonetheless disallows the return, the employee will remain eligible for benefits until fully recovered.

In his conditional veto the Governor expressed that he “unequivocally support[s]” the expansion of these benefits but noted he identified “significant issues with the infrastructure supporting these programs.” Therefore, he conditionally vetoed the three bills to change their implementation date to one year after the date of enactment, instead of immediately. In the meantime, the Governor has directed the Department of Labor Workforce Development to work with Office of Information Technology to coordinate a strategy for implementation and modernization of the department’s computer system.

The conditional vetoes await consideration by the full Assembly and Senate, respectively.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

New Law Permits Special Assessments and Bond Issuances to Replace Lead Contaminated Water Service Lines


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town-crier_facebookOn August 24, Governor Murphy signed into law A-4120/S-2695, which authorizes municipalities to levy special assessments, and issue bonds, to replace certain lead-contaminated water service lines. However, all projects under this new law must be (a) undertaken as an environmental infrastructure project and (b) funded either by loans from the New Jersey Infrastructure Bank or New Jersey Department of Environmental Protection.

P.L. 2018, c. 114 expands the ability of municipalities to charge a local assessment for local improvements to include installation of service connections to a publicly-owned water system, from the distribution main onto privately-owned real property and into the privately-owned structure, for the purpose of replacing lead-contaminated service connections, regardless of possible private service connection ownership.  For utilities and municipal systems, the law also establishes the useful life of 30 years for house connections to publicly-owned water systems, from the distribution main onto privately-owned real property and into the privately-owned structure, for the purpose of replacing lead-contaminated house connections.

Finally the law amends the “County and Municipal Water Supply Act” to include the term “water supply facilities. “Water supply facilities” has been defined to include the replacement of service connections to a publicly-owned water system, from the distribution main onto privately-owned real property and into a privately-owned structure, when used in reference to a project undertaken for the purpose of replacing lead-contaminated service connections, regardless of possible private service connection ownership.

This new law took effect on August 24, 2018.

Contact: Lori Buckelew, Senior Legislative Analyst, LBuckelew@njslom.org, 609-695-3481 x112.


Law Permits County to Change Assessment Calendar



correct size blogOn August 17 Governor Murphy signed into law A-538/S2257, which permits a county governing body, with approval of the county board of taxation, to revise the real property assessment calendar. Effective immediately, P.L. 2018, c. 94 permits a county governing body to adopt the revised real property assessment calendar that is used in the Real Property Assessment Demonstration Program. Adoption of the revised calendar does not require participation or adoption of the Real Property Assessment Demonstration Program. Currently, Monmouth and Gloucester counties are using the revised calendar.

In order to change the assessment calendar, the county board of taxation must adopt a resolution approving the change of assessment calendar by a majority of the board. However, before adoption of such resolution the county tax board administrator must consult with the county’s association of municipal assessors. After adopting the resolution, the county board of taxation has seven business days to forward the resolution to the county.  The county freeholders must consider the county tax board’s resolution no later than 60 days following its receipt.

If the county adopts the revised assessment calendar the county must notify the Division of Taxation within one business day, and the residents of the county, by public notice, no later than the first day of the second month following adoption of the change.

The following are the current statutory dates relative to the individual functions that comprise the real property assessment process, and the dates for those functions under the Real Property Assessment Demonstration Program:

Dates Relative to Certification of the Tax List, Assessment Appeals, and the Calculation of Local Tax Rates in Municipalities that adopt the Real Property Assessment Calendar under the “Real Property Assessment Demonstration Program”
Description of Function Current Date Real Property Assessment Demonstration Program
Assessing Date October 1 of pre-tax year October 1 of pre-tax year
Certification of Preliminary Assessment N/A November 1 of pre-tax year
Notification of Assessment Postcards February 1 November 15 of pre-tax year
Assessment Appeal Filing Deadline April 1; May 1 in municipalities wherein revaluation of real property has occurred January 15
Assessment Appeals Heard May, June, and July February, March and April
Tax List Filed January 10 May 5
County Preliminary Equalization March 10 May 15
County Final Equalization March 10 May 25
Municipal Budget to Tax Board March 31 May 15
County Budget to Tax Board April 1 May 15
School Budget to Tax Board May 19 May 15
Certified Tax Rates May 20 May 31
Tax Duplicates June 3 June 3
Tax Bills June 14 June 14

If the county adopts the revised assessment calendar it is implemented on October 1st. The change in the calendar is permanent and the county is prohibited from adopting any other real property assessment calendar.

  • Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

Governor Signs Post-Retirement Volunteer Bill


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correct size blogOn August 17 Governor Murphy signed into law A-1627/S-1873, which protects the pension rights of former employees who continue to serve their communities as volunteer first responders.  The new law provides that PERS and PFRS retirees can continue to provide volunteer firefighter or emergency services after retirement while collecting pensions based on their prior paid service. The law clarifies the definition of ‘bona fide severance’ in order to comply with State and federal law.  The law permits a public employee who also volunteers as a firefighter or first aid worker, rescue squad worker, or emergency medical technician in the municipality to continue to serve as a volunteer after retirement. If the retired public employee job duties were similar, there must be a break of service of at least 30 days after retirement. The new law still does not permit a paid firefighter employed by a part-paid fire department to serve as a volunteer with the department from which they retired.

The League strongly supported this legislation which stems from a League Conference resolution in 2014 as a result of the Division of Pension and Benefits guidance on post-retirement employment restrictions for public employees. We thank the sponsors Senators Sarlo and Kean, Assemblywoman Schepisi, and Assemblymen Bucco, Auth, Danielson, and DiMaio for their efforts in advancing this legislative fix to permit volunteers to continue to serve their communities.

P.L. 2018, c. 96 took effect on August 17, 2018.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.


Court Rules That Police Dash Camera Footage Pertaining to Investigations Exempt From OPRA



correct size blogOn Monday, the State Supreme Court issued its ruling in Paff v. Ocean County Prosecutor’s Office.  In this case the Court was asked to determine whether or not dash camera recordings, made in compliance with a municipal police chief’s general order, are subject to OPRA disclosure.  The Court in a 4-3 decision ruled that dash camera recordings are exempt from disclosure as such recordings are excluded from OPRA’s definition of government record as it is a criminal investigatory record.

This case involved a denial of an OPRA request for police dash camera footage, from an incident where a driver attempted to elude police.  During the apprehension of the driver, a police canine was deployed.  The officer’s decision to deploy the dog was drawn into question which led to an internal investigation and criminal charges against the officer.  The OPRA requestor challenged the withholding of the footage, relying on the municipal police chiefs order that police use dash cameras to record certain incidents.  Arguing that chiefs order meant the dash camera footage was “required by law” to be made.

While OPRA generally favors disclosure there are several categories of records that OPRA excludes from its definition of government records.  Criminal investigatory records are one of those items specifically excluded.  Criminal investigatory records are 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.” In this case, the underlying question at hand was whether or not the dash camera recordings were “required by law to be made.”   This question was recently addressed in another State Supreme Court decision, N. Jersey Media Grp., Inc. v. Township of Lyndhurst, where use of force reports were requested under OPRA.

In Lyndhurst, the Court ruled that use of force reports should be disclosed under OPRA after it was determined that a State Attorney General Directive ordering all law enforcement agencies to create and maintain such reports carried the force of law and were therefore “required by law to be made.”  The Court distinguished the Lyndhurst decision from the case at hand; finding that even though the dash camera recordings were made in accordance with a municipal police chief’s order, unlike a directive from the Attorney General, the police chief’s order does not carry the force of law. Therefore the dash camera recordings were not “required by law” to be made and were exempt from disclosure under OPRA.

This ruling, when viewed in conjunction with the Lyndhurst decision, effectively means that all police dash camera footage pertaining to a criminal investigation are exempt from disclosure under OPRA.  This of course could changeif the use of police dash cameras becomes mandated, either through legislation or through a directive from the Attorney General.

While the Court determined the dash camera recordings were exempt from disclosure under OPRA, it did not analyze or reach a determination of disclosure under the common law right to access.  Instead, the Court remanded the case to the trial court where disclosure under the common law would be reviewed.  The Court did however briefly comment on how similar the matter was to the Lyndhurst decision, where it found that under the common law, dash camera recordings of a police shooting should be made public.  This was done after applying a balancing test in which the Court found there would be only minimal if any impact on the ongoing investigation. And, police involved shootings are of such great interest to the public that any impact to the investigation was outweighed in favor of disclosure.

Although the Court reached the determination that dash camera recordings are excluded from disclosure under OPRA by way of the criminal investigatory records exemption, it nonetheless addressed two other issues raised on appeal, providing additional insight into exemptions from OPRA.

The Court first examined OPRA’s “investigations in progress” exemption, which exempts records from being disclosed when (1) they pertain to an investigation in progress by a public agency, (2) disclosure would be inimical to the public interest, and (3) the records were not available to the public before the investigation began.

In short order the Court found that the first and third requirement of the investigation in progress exemption was satisfied.  However, the Court found that the second requirement had not been met as the Ocean County Prosecutor failed to provide any support that disclosure of the dash camera recordings would undermine its investigation.  The Court also found that there was strong public interest in the interaction of police officers with the public and therefore disclosure would be favored.

The second additional issue addressed by the Court involved the application of OPRA’s privacy clause, which would exempt disclosure under OPRA.  The privacy clause of OPRA instructs a public agency to refrain from disclosing, “a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.”  In addition, in the case at hand, the defendant had personally objected to the release of the dash camera recording over privacy concerns.

The Court was unpersuaded by this as it ruled that there was no reasonable expectation of privacy as the incident in the dash camera recording took place in public and there was no other specific reasoning given for the privacy concerns, only a generic objection.   The Court indicated that there could in fact be circumstances where a person’s reasonable expectation of privacy would warrant withholding of a police video.  However, the facts of the matter at hand were examined there was no expectation of privacy, and therefore withholding or redacting the video under the privacy exemption was not warranted.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org, 609-695-3481 x137.