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.