The court’ s opinion understandably does not reveal the identity of the individual who was the subject of the OPRA request. It is not too difficult to imagine members of the public making requests for similar information about law enforcement officers who have neither been arrested nor charged with crimes. This decision, if upheld on appeal, will protect law enforcement officers, as well as members of the public, who may be the subject of similar OPRA requests.
Because this decision was unanimous, there is no automatic right of appeal. It would require the Supreme Court to exercise its discretion to hear a request for an appeal if one is filed. As of this writing, it is too early to know whether such a request will be filed. We will continue to keep the State PBA and its members apprised of any developments in this case.
Courts differ over whether MVR footage must be released
With the increasing use in New Jersey and other states of footage from mobile video recorders and, more recently, from police body cameras, courts are confronting the issue of whether this footage is a public record which must be released under OPRA. In two recent decisions, different panels of the Appellate Division came to different conclusions about whether the MVR footage at issue in each case fell within either the“ criminal investigatory record” or“ investigation in progress” exemptions to OPRA, or whether it must be released. The Supreme Court of New Jersey has already decided to hear one case; the second case included a dissent, which allows for a right of appeal.
In December 2015, the Supreme Court agreed to hear an appeal in North Jersey Media Group, Inc. v. Township of Lyndhurst, 441 N. J. Super. 70( App. Div.), leave to appeal granted, 223 N. J. 553( 2015). This case involved a fatal police shooting of a criminal suspect following a high-speed chase across several municipalities. Reporters submitted numerous records requests, including audio and video recordings from MVRs, from multiple law enforcement agencies. The Appellate Division held that most, including the MVR footage, were exempt from disclosure under OPRA because they were criminal investigatory records.
Pursuant to OPRA, one of the factors the courts look to is whether the requested records are required by law to be kept or maintained. If so, they must be released. In other words, access would be allowed under OPRA to records which were required by law to be made, maintained or kept on file if they did not fall within any other exemption. Because it concluded that the MVR footage was“ not required by law to be made or maintained,” the court held that it need not be disclosed.
In contrast, the Appellate Division in Paff v. Ocean County Prosecutor, 446 N. J. Super. 163( App. Div. 2016), a 2-1 decision, held that footage from MVRs depicting the arrest of a suspect was not exempt from disclosure. The prosecutor denied access to the records because they were part of a“ criminal investigation in progress” and“ an internal affairs” matter. The recordings involved a Tuckerton Borough police officer’ s arrest of a driver after a motor vehicle chase, which also involved two Barnegat Township police vehicles. The Tuckerton police officer who initiated the stop was later the subject of an internal
affairs investigation, and ultimately was indicted for various second- and third-degree offenses. The MVR recordings were automatically activated when the patrol vehicle switched on its overhead lights. This was an important factor in the court’ s determination because the court concluded that the footage preceded any investigation and therefore did not fall within an exemption under OPRA. The court also used this fact to differentiate the Lyndhurst case, which did not appear to involve automatically-activated MVR footage. Because there is a dissenting opinion, there is a right to an appeal. We have been advised that an appeal has been filed.
It is important to understand what these cases decided and what they did not decide. Although two different panels of Appellate Division judges came to different decisions in Paff and North Jersey Media Group as to whether the MVR footage was exempt from disclosure under OPRA, the decisions were limited to the facts of those cases. The courts did not decide that all MVR footage in all circumstances must be disclosed or withheld. Additionally, although these cases involve MVR footage, and not footage from police body cameras, it is likely that decisions involving footage from police body cameras will be subject to similar analysis. As more and more departments opt to require officers to wear body cameras, it is inevitable that there will be similar litigation once the footage from those cameras is the subject of OPRA requests. The release of this footage will be determined by the custodian of records in the jurisdictions in which you work. We would also expect that county prosecutors in all counties will address these issues as appeals in these cases are decided and as other cases arise. d www. njcopsmagazine. com ■ SEPTEMBER 2016 15