NJ Cops Sept18 | Page 12

Is MVR footage protected from OPRA disclosure? It depends The Supreme Court of New Jersey recently issued a decision about whether footage from Mobile Video Recorders (MVR) must be disclosed under the Open Public Records Act (OPRA). In the September 2016 issue of NJ Cops Magazine, we discussed the disagreement of two different panels of the Appellate Division concerning whether MVR footage is subject to OPRA disclosure. In one case, North Jersey Media Group Inc. v. Lyndhurst, decided in 2017, the Supreme Court unanimously held that MVR recordings of a police shooting were not exempt from disclosure under OPRA because it was not clear whether the recordings had been activated automatically or by the officers in an exercise of their discretion. Activation did not appear to be pursuant to a general order issued by the police chief and was not mandated by any attorney general directives. In the most recent case, Paff v. Ocean County Prosecutor’s Office, decided on Aug. 13, the Supreme Court, in a 4-3 decision, also concluded that OPRA does not require disclosure of recordings made by MVRs if they are required by general order of the department chief, as opposed to a policy or directive of the attorney general. By way of background, the Barnegat Township Police Department issued a general order requiring officers to use MVR equipment during certain incidents, including traffic stops, criminal enforcement stops, police pursuits, et al. The MVR at issue in the 12 NEW JERSEY COPS ■ SEPTEMBER 2018 Paff case recorded an incident during which police officers pursued and arrested a driver who allegedly eluded an officer attempting to make a traffic stop. One of the officers deployed a police dog during the arrest, and the dog injured the driver. This resulted in the officer being subjected to internal affairs investigations and criminal charges. The driver of the vehicle filed an OPRA request seeking the MVR recordings. The Ocean County Prosecutor’s Office denied the application, citing specific exceptions to OPRA — that the records are a “criminal investigatory record,” that they pertain to an “investigation in progress,” and that the driver’s personal information needed to be safeguarded from disclosure because disclosure “would violate the citizen’s reasonable expectation of privacy.” The driver filed suit seeking the MVR recordings. The trial court and Appellate Division both ordered disclosure of the recordings under OPRA. But the Supreme Court has reversed and remanded the matter back to the trial court for consideration as to whether the plaintiff driver can access the records under the “common law right of access” doctrine. The decision is a bit complicated because it addresses several OPRA issues. OPRA has prerequisites for determining what is a public record subject to disclosure, as well as exceptions prohibiting release even when the record is otherwise deemed a public record. There is also a “common law right of access” to certain records,