Courts and attorney general weigh in
on OPRA and police video recordings
With the increased use of body-worn cameras
(BWC) and vehicle dash-cams during the past
several years, there has been increased litigation
over whether the footage taken by either must
be released to the public upon request. We re-
ported on some of those cases in the September
2016 issue of NJ COPS Magazine. Recently, there
have been several developments in the courts
and the attorney general’s office on this issue.
On Feb. 26, Attorney General Gurbir Grewal
issued a new directive concerning the public
release of BWC and dash-cam recordings in any
case involving use of deadly force. The complete
directive is available on the Division of Criminal Justice website. Ac-
cording to the new policy, law enforcement agencies will presump-
tively make available, upon a formal request by the media or by a
member of the public, video footage taken by BWCs or dash-cams
“once the initial investigation of the use-of-force incident is sub-
stantially complete.” It will be up to the prosecutor’s discretion to
determine when the initial investigation is substantially complete,
but, according to the directive, it will typically occur after the prin-
cipal material witnesses to a use-of-force event have been inter-
viewed and after the most relevant evidence has been gathered. It
does not mean that the entire investigation must be substantially
complete.
The directive does not take effect immediately. The attorney
general stated he will await advice from the New Jersey Supreme
Court’s Advisory Committee on Professional Conduct about wheth-
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■ MARCH 2018
er public release of the footage is consistent with
the Rules of Professional Conduct, which govern
attorney conduct. Those rules generally prohib-
it prosecutors from making public comments
that might prejudice pending legal proceedings.
The attorney general’s concern is that prosecu-
tors do not violate these rules when they release
the BWC or dash-cam recordings. Therefore, the
directive will await the advisory committee’s de-
cision about whether release of the recordings
upon substantial completion of the initial inves-
tigation violates the Rules of Professional Con-
duct.
But release of such videos is also being pursued in the courts.
In issuing the directive, the attorney general was guided in part by
the Supreme Court’s decision in North Jersey Media Group, Inc. v.
Lyndhurst, 299 N.J. 541 (2017). In our September 2016 article, we
discussed the Appellate Division’s decision. This case concerned
dash-cam video that was taken during a fatal police shooting after
a high-speed chase. The court concluded that the recording was ex-
empt from disclosure under the Open Public Records Act (OPRA)
because, in part, it pertained to a criminal investigation, which is
an exception under that law. But there are other ways a court can
skin a cat. The court also concluded that it was required to be dis-
closed under the “common law right of access,” which is broader
than OPRA, and which balances the requestor’s interest in disclo-
sure against the government’s interest in confidentiality. In this
case, the court struck this balance in favor of release because the