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

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Dash Camera Footage, OPRA

On 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.

NJ Supreme Court Narrows Scope of OPRA Exemption

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Dash Camera Footage, OPRA, UFR

On July 11, 2017, the NJ Supreme Court issued a unanimous decision in North Jersey Media Group, Inc., v. Township of Lyndhurst, et al.  This case attempts to provide clarification to the scope of the ‘criminal investigatory record’ and ‘records of investigations in progress’ exemptions to the Open Public Records Act (OPRA).  In addition to providing clarification on these OPRA exemptions, this case also touched upon the common law right of access.

In its opinion, the Court ruled against Lyndhurst.  Finding that, Lyndhurst must disclose unredacted Use of Force Reports (UFR) under OPRA and must disclose the footage of the deadly police shooting captured by the police cruiser’s dash camera under the common law even though the Court found that the dash camera footage did in fact fall under the investigatory record exemption in OPRA and would be subject to nondisclosure

The case involved two newspapers’ request for records pertaining to a deadly police involved shooting.  Citing authority under OPRA and the common law right to access, North Jersey Media Group (NJMG), brought suit against Lyndhurst after the town refused to provide footage captured by a police cruiser’s dash camera and the unredacted Use of Force Reports (UFR), showing the names of the officers involved in the shooting.   Lyndhurst maintained that both the disclosure of the fully unredacted UFRs and the dash cam footage were exempt under OPRA as these records were being used in an ongoing criminal investigation and record of an investigation in progress.  Additionally, Lyndhurst argued that these records were also exempt from disclosure under the common law right to access as the State’s interest in preventing disclosure outweighed the public’s interest in the records.

In a response to this ruling, Glenn A. Grant, Acting Administrative Director of the Courts issued a Directive to all assignment judges.  The Directive set forth best practices for handling common law right of access request for dash camera footage in fatal police shootings.  The Directive instructed assignment judges to treat these types of requests as “expeditiously as the court would address a sensitive OPRA filing.”

A short explanation of the Court’s reasoning for its decision is provided below.

Use of Force Reports (UFR)

In its ruling the Court determined that UFRs must be disclosed under the authority of OPRA.  The Court reasoned that the Attorney General’s Use of Force Policy, which requires all police forces in the state create UFRs, is in effect a government record as it is required by law to be made.  The Court therefore found that Lyndhurst, or any other government entity for that matter, could not rely on the ‘criminal investigatory record’ exception to withhold the disclosure of UFRs because UFRs were a record “required by law to be made.”

Likewise, the Court ruled that Lyndhurst could not avail itself of the ‘ongoing investigation’ exception to OPRA.  The court reasoned that while typically records are exempt from disclosure if they would be inimical to the public interest, in this case the UFRs contained relatively limited information.  Furthermore, the Court found that the safety concerns proffered by Lyndhurst as its reasoning for redacting the officer’s names were merely general and under the circumstances do not raise to the level needed to allow for nondisclosure.

While the Court ruled that the names of the officers must be disclosed, it did sympathize with the argument made for withholding those names.  The Court, however, reasoned that it is limited only to interpreting the current law which requires disclosure.  The Court explained that the law allowing for nondisclosure would need to come from the legislature.

Dash Camera Footage

The Court ruled that dash camera footage must be released under the common law right to access, not OPRA.  The Court determined that the public has a strong interest in a police shooting that involved a citizen and that the strong public interest outweighed the police’s interest in preventing disclosure.    The Court reasoned that in the case of dash camera footage of deadly police shootings, when the footage does not place potential witnesses and informants at risk nor undermine the integrity of the investigation that the public interest in disclosure outweighs the police interest in withholding.

We believe it is unclear whether or not the same strong public interest which tilted the scales to disclosure would apply to dash camera footage in cases that do not involve deadly police shootings.  This is perhaps something that will need to be determined on a case-by-case basis.  It is also yet to be seen how this ruling will affect request for other police camera footage, such as body cameras and in different circumstances (i.e. road stop, routine patrol).

Although moot because disclosure to the footage was allowed under the common law, the Court also took the opportunity to examine whether dash camera footage is exempt from disclosure under the criminal investigatory record exemption to OPRA.  Siding with Lyndhurst, the Court found that the dash camera footage did in fact fall under the investigatory record exemption and would be subject to nondisclosure.   The Court reasoned that, while dash camera footage was a record created at the earliest stages of a criminal investigation, it was a record nonetheless and therefore entitled to the OPRA exemption.

The Court taking the opportunity to address the interplay of OPRA and dash camera footage provides a silver lining to this otherwise disappointing ruling.  That silver lining being that because the access to dash camera footage is exempt from disclosure under OPRA and only available under the common law right to access, the fee shifting of the costs of suit does not apply.  That is because generally, only under OPRA can a requester recover for the costs incurred when successful in a suit to compel disclosure.  No such fee shifting is applicable in suits seeking disclosure under the common law.

We suggest that you review this ruling with your municipal attorney, police chief and records custodians to address the changing scope of the OPRA exemption and the common law right to access.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x. 137.