Hoping to obtain a copy of dash camera video from a police department or other public agency? Depending on what that video contains, it may have just become much more difficult to do so.
The New Jersey Supreme Court Ruling
On August 13, 2018, the New Jersey Supreme Court in Paff v. Ocean County Prosecutor’s Office found that recordings created by a police department’s mobile video recorder (MVR) were exempt from disclosure as they constituted “criminal investigatory records” under the Open Public Records Act (OPRA). This decision reversed the Appellate Division’s ruling back in 2016, which held that the exception did not apply and left MVR recordings relatively open to requests by the public.
What is OPRA?
OPRA, which is codified by statute at N.J.S.A. 47:1A-1 et seq., allows citizens to request and obtain copies of government records from public agencies of the State. While it aims to provide access to the greatest extent possible, it also contains a number of necessary exceptions requiring either redaction of sensitive or confidential information, or a denial of access to certain records as a whole.
The August 2018 decision examined a nuanced area of OPRA, involving the intersection of a number of exemptions including “criminal investigatory records,” “ongoing investigation records,” and records that intrude upon a citizen’s reasonable expectation of privacy. Any one of these may be the basis for a public agency to deny a request for access to government records. Until now, as it pertained to MVR recordings in most circumstances, the Appellate Division had found that none of those exemptions applied, and thus the video would be subject to disclosure. The video in question involved the pursuit and arrest of a driver who allegedly eluded an officer, and the use of a police dog in the driver’s apprehension that resulted in internal affairs investigations and criminal charges against the officer.
The Criminal Investigatory Records Exception
The Supreme Court’s decision focused on the “criminal investigatory records” exception to OPRA, the application of which was the only portion of the Appellate Division’s decision that was reversed. Records need not be disclosed under this OPRA exception if they are (1) “not required to be made, maintained or kept on file” by a law enforcement agency, and (2) “pertain to any criminal investigation or related civil enforcement proceeding.” Previously, the Appellate Division found that the first prong of this test was not met since the Barnegat Police Chief’s General Order to his department on the use of MVR amounted to a legal requirement to create the video. The Supreme Court ruled that the General Order of a Police Chief requiring the creation of MVR video did not carry the force of law, contrasting it with the Attorney General’s Use of Force Policy previously examined in N. Jersey Media Grp., Inc. v. Township of Lyndhurst. The Court noted that to attribute the force of law to a Police Chief’s orders to his or her department would “effectively write the criminal investigatory records exemption out of OPRA[.]” Accordingly, since the recording in question was not legally required to be made, and since the video pertained to both the initial criminal investigation of eluding and the subsequent investigation of the officer’s use of a police dog, the video was exempt from disclosure under OPRA as a criminal investigatory record. However, the matter was remanded to the trial court to determine whether the requestor has a common-law right of access to the recordings.
The Supreme Court did not disturb the Appellate Division’s determination that the other exemptions did not apply in this case. The “ongoing investigation” exception requires, in part, that the disclosure of a record would be “inimical to the public interest.” In this instance, the Prosecutor’s Office did not set forth sufficient facts to support such a finding, and the Court noted that there was no threat to officer safety and no impact on the reliability of an investigation. Finally, the Court also found that no specific privacy concerns supported withholding this record from disclosure. It found that the driver’s general objection was insufficient, and that any objection to disclosure on privacy grounds should be specified in detail.
Non-Criminal Records are Still Potentially Accessible
It is important to note that this decision pertained specifically to MVR recordings in a criminal context. However, the criminal investigatory records exemption would not apply, for example, in a routine traffic stop that is not “criminal” in nature. Thus, both records requestors and public agencies should be cognizant that this decision does not amount to a blanket prohibition on the disclosure of dash camera video. In non-criminal matters, whether the video must be provided in response to an OPRA request will require a close examination of the facts to determine if any other exemptions are applicable.
Andrew Ball is an associate in the firm's Municipal Law and DWI and Municipal Court Defense Departments. Additionally, Andrew represents individuals charged with traffic violations ranging from simple tickets to DWIs. He also defends those charged with criminal offenses in both Municipal and Superior Courts.