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
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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,