Courts decide whether MVR footage and request
for records about persons not charged with
crimes are protected from OPRA disclosure
The appellate courts have issued several decisions recently that should be of interest to all law
enforcement officers. The cases concern whether
footage from Mobile Video Recorders (MVR) in
police vehicles must be disclosed under the Open
Public Records Act (OPRA), and whether a prosecutor may neither confirm nor deny the existence of
records requested about a person who had neither
been arrested nor charged with a crime. The MVR
issue will be decided by the New Jersey Supreme
Court. As of the date of publication, we do not know whether
the Supreme Court will review the case involving the prosecutor’s “neither confirm nor deny” response to an OPRA request.
Prosecutor’s “neither confirm nor deny” response
is permissible
In North Jersey Media Group, Inc. v. Bergen County Prosecutors Office, et al., a unanimous decision that was approved for
publication and decided on Aug. 31, 2016, the Appellate Division was confronted with a case of first impression. A news
organization requested numerous records pursuant to OPRA
from the Bergen County Prosecutor’s Office about an individ-
14
NEW JERSEY COPS ■ SEPTEMBER 2016
ual who was not charged with any crime and had
not been arrested. In response to the request, the
prosecutor did not produce any records and
responded that he would neither confirm nor deny
whether an individual who has neither been
charged nor arrested is, or has been, the subject of
an investigation. In support of his response, the
prosecutor noted that law enforcement agencies
routinely receive allegations that are determined to
be unprovable, unfounded or untrue, and that
identifying the target of those allegations would unfairly subject the individual to irreparable harm, and also subject the
Office of the Prosecutor and its employees to civil liability and
professional discipline.
The Appellate Division held that the prosecutor’s “neither
confirm nor deny” response was permissible under OPRA,
based upon the facts of this case. The court held that OPRA
provides a shield of confidentiality for information requests
regarding a person who has not been arrested or charged with
an offense. The court emphasized that there was a high degree
of confidentiality which applied in this case and which superseded any public interest in the information.