which is an alternative to OPRA in obtaining records. The court
addressed all these issues. Because a discussion of the issues would
be too lengthy, we will address one of the issues, which is a common
one in OPRA decisions involving police records — whether the
recordings are “criminal investigatory records” and, therefore,
exempt from disclosure under OPRA.
The court addressed an issue which was not reached in the
Lyndhurst case because the recordings in that case did not appear
to have been made pursuant to an order issued by the chief. In the
Paff case, there was a chief’s order requiring the use of the MVR.
Under the “criminal investigatory records” exception in OPRA,
records not required by law to be made, maintained or kept on file
that pertain to a criminal investigation or related civil enforcement
proceeding are protected from disclosure.
The court had to consider whether a chief’s general order
had the force of law under OPRA. The court held that the MVR
recordings were not required by law to be made, maintained or
kept on file — a prerequisite to production of a document under
OPRA — because no statute gives a general order issued by the
chief the force of law. In addition, the MVR recordings pertained
to an investigation of the driver eluding the police, which was
the beginning stage of a criminal investigation of both the
perpetrator and the officer. As such, MVR is not a public record
subject to OPRA, and therefore the recordings were properly
exempt from disclosure under that law.
Thus, the court held that the MVR recordings were not
disclosable under OPRA because they constitute a criminal
investigatory record. The court also provided an analysis of
other OPRA exceptions to guide further cases. Finally, the court
also sent the case bac k to the trial court for consideration as to
whether the driver can access the MVR recordings under the
common law right of access doctrine, which can be broader than
the strict requirements of OPRA.
Not all the justices agreed with the majority opinion. The
dissenting justices argued that the majority erred by limiting the
public’s right to access MVR recordings. Regarding the majority’s
opinion that the MVR recordings were excluded from OPRA because
they are criminal investigatory records, the dissent disagreed with
the conclusion that videos were not required to be maintained by
law. Because the chief issued a general order requiring the MVR
equipment and its use in certain instances, the dissent opinion
concluded that this was a command to police officers and they
were not permitted to disobey it. In other words, the dissent would
have found that the chief’s order had the force of law under OPRA.
According to the dissent, the recordings were required by law to be
made, do not fall under the criminal investigatory record exception
and therefore would have to be produced. The dissent warned that
the goal of having the public — and marginalized communities
in particular — have greater trust in the police is more likely to be
achieved when law enforcement activities are transparent, and that
the court’s decision did not advance that purpose.
These are issues which are of tremendous significance to law
enforcement officers. Obviously, judges in both the Appellate
Division and on the Supreme Court are struggling with this issue
and how to apply OPRA and common law requirements to MVR
videos. Thus, it is important to note that the court did not conclude
that MVR footage is exempt from disclosure under OPRA in all
circumstances.
The decision in the Paff case is limited to the facts of that
particular case. Each case will turn on the particular facts
involved. In addition, while this case involved MVR footage,
footage from police body cameras — the use of which is becoming
more and more common — will likely be subjected to a similar
analysis, unless or until there is further clarification from the
attorney general or NJ State Legislature. But as things stand now,
the release of MVR recordings and body camera footage under
OPRA will be decided initially by the custodian of records in the
jurisdictions in which you work. We will continue to keep the NJ
State PBA and members apprised of any developments in this
very important issue. d
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