27th Aug 2018
On August 13, 2018, the New Jersey Supreme Court, in John Paff v. Ocean County Prosecutor’s Office, issued its decision regarding whether mobile video recorders (“MVRs”), or dash camera recordings, made in compliance with a municipal police chief’s general order, are subject to disclosure under New Jersey’s Open Public Records Act (“OPRA”). The Court found that the MVR recordings at issue fell within the definition of a criminal investigatory record, which is an exemption to OPRA’s definition of a government record, and therefore were not subject to disclosure.
OPRA provides that: “…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions[.]” N.J.S.A. 47:1A-1. “Criminal investigatory records” are among the several categories of records that the statute excludes from its definition of government records. N.J.S.A. 47:1A-1.1. That term is 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.” Id.
In Paff, an individual requested access under OPRA and the common law to a Barnegat Township police officer’s MVR recordings of an incident in which police officers pursued and arrested a driver, who eluded an officer attempting a traffic stop and was injured by a police dog during the arrest. Prior to this incident, the Chief of the Barnegat Township Police Department had issued a General Order which instructed officers to record by MVR several categories of incidents. The MVR recordings at issue in this case were made pursuant to this General Order.
After the Ocean County Prosecutor’s Office denied the requester access to the recordings, the requester filed a lawsuit seeking access on the basis of OPRA and the common-law right of access. The trial court ordered disclosure of the recordings and the Appellate Division affirmed. The Appellate Division recognized that an agency seeking to withhold a record from disclosure under the “criminal investigatory records” exception must satisfy both prongs of the exception by demonstrating that the records are not required by law to be made, maintained or kept on file, and that they pertain to a criminal investigation or related civil enforcement proceeding. However, the Appellate Division found that the MVR recordings did not meet the first prong because the Chief’s General Order meant that the recordings were “required by law to be made.”
However, the Supreme Court reversed the Appellate Division’s decision, finding that the MVR recordings were not “required by law to be made” because a Police Chief’s General Order is not given the force of law by any statute. Because the MVR recordings were not made and retained in compliance with any law or directive carrying the force of law, the first prong of the “criminal investigatory records” exception under OPRA is satisfied. The Court also held that the second prong of the exception was satisfied because the MVR recordings pertained to the criminal investigation of the driver for eluding and resisting arrest and the internal affairs and criminal investigations of the police officer who deployed the police dog. Therefore, the MVR recordings were found to be exempt from disclosure under OPRA.
In addition, because the trial court and Appellate Division had not addressed the issue of whether the MVR recordings would be subject to disclosure under the common-law right of access, the Supreme Court remanded the matter to the trial court for a determination on that issue. The Court explained that in order to gain access under the common-law right of access, the requester must establish an interest in the subject matter of the material and the “citizen’s right to access must be balanced against the State’s interest in preventing disclosure.” The Court cited to a prior decision in which the Court allowed common-law access to the MVR recordings of a police shooting after balancing these factors. N. Jersey Media Grp. Inc. v. Twp. of Lyndhurst, 229 N.J. 541 (2017).
The Paff decision essentially means that all police dash camera recordings which pertain to a criminal investigation are exempt from disclosure under OPRA. However, requests made pursuant to the common-law right of access must still be analyzed on a case-by-case basis.
Please be advised that our firm is available to provide additional guidance regarding the implication of the Court’s decision and any other OPRA-related issues. If you have any questions regarding the application of this decision, please contact our offices.