A divided New Jersey appeals court recently held that the public has the right to access recordings from the mobile video recorders (MVRs) in police vehicles under the Open Public Records Act (OPRA). However, it is likely that the Supreme Court of New Jersey will have the final word on this issue. 
The Fact of the Case
In Paff v. Ocean County Prosecutor’s Office, Plaintiff John Paff filed a verified complaint and an order to show cause seeking the police dash cam recordings of an incident involving a Tuckerton Borough police officer’s arrest of a driver for eluding and motor vehicle offenses. The arrest later resulted in charges of police misconduct. The Ocean County Prosecutor’s Office refused to provide the recordings, stating that they were exempt from disclosure under OPRA as “criminal investigatory records” among other things.
As previously discussed on this blog, the defendant has the burden to establish that the criminal investigatory reports exemption applies to an OPRA request. To do so, the defendant must demonstrate that the documents sought are “not required by law to be made,” and that they “pertain to a criminal investigation or related civil enforcement proceeding.” O’Shea v. Township of West Milford, 410 N.J. Super. 371, 381-82 (App. Div. 2009).
Superior Court Judge Vincent Grasso ordered the recordings to be disclosed pursuant to OPRA. In reaching his decision, Grasso noted that officers were required to use the video cameras pursuant to policies adopted by the municipalities. He further found that the videos were maintained as part of normal police business and not related to a specific investigation. Finally, Judge Grasso held that the driver’s “expectation of privacy” did not justify withholding the recordings.
The Court’s Decision
By a vote of 2-1, the Appellate Division affirmed the trial court decision. It held that OPRA’s “criminal investigatory records” exemption, as well as the “investigation in progress” exemption, did not apply to the police dash cam recordings.
In reaching its decision, the court noted that “OPRA’s clear purpose . . . is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.”
With regard to the criminal investigatory reports exemption, the appeals court concluded that the Ocean County Prosecutor’s Office failed to establish that the exemption applied. With regard to the first part of the test, it held that “the order of the Barnegat Township Police Chief, which requires all officers to activate MVRs when making a traffic or law enforcement stop, was authorized by statute and unequivocally binding upon the police officers within the department, and thus had the force of law.” In so ruling, the appeals court rejected “the conclusion that the intent of the Legislature in enacting OPRA would have restricted the phrase [‘required by law’] to statutes or regulations with statewide application.”
With regard to the second element, the Appellate Division noted that the MVR was automatically activated when the patrol vehicle switched on its overhead lights. “Accordingly, we cannot conclude on this record that the Barnegat officers were investigating anything when the lights were activated.”
The Appellate Division also rejected the argument that releasing the footage would cause harm. “The information contained relates to a motor vehicle stop that took place in a public setting,” Judge John Kennedy wrote. “[T]here is no potential harm in any subsequent disclosure of the recordings.”
In his dissent, Judge Robert Gilson argued that the Barnegat Police Chief’s general order that police activate their video recording devices does not constitute a “law” within the meaning of OPRA’s criminal investigatory records exception. Judge Gilson further concluded that the record provided sufficient proof that the police dash cam recording pertained to a criminal investigation.
Because the Appellate Division split 2-1, the Ocean County Prosecutor’s Office is automatically entitled to appeal to the New Jersey Supreme Court. The state’s highest court has already agreed to hear North Jersey Media Group, Inc. v. Township of Lyndhurst, which also involves the release of police recordings under OPRA.
For more information about the court’s OPRA decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.