Category Archives: Law enforcement records

GRC: Police Body Camera Footage Is Not Exempt Criminal Investigatory Record

The GRC has issued its first decision on the question of whether police body camera footage is accessible under OPRA. Dericks v. Sparta Twp. (Sept. 29, 2017).

The GRC ruled that the criminal investigatory exemption does not apply to police body camera video concerning a criminal matter, because these recordings are required by law–namely, an Attorney General Law Enforcement Directive–to be made, maintained or kept on file. See this post for a discussion of how the Supreme Court’s Lyndhurst opinion made clear that Attorney General Directives have the force of law for purposes of the criminal investigatory record exemption.

In a footnote, the GRC stated that the Attorney General’s Directive does not provide confidentiality to body camera recordings under OPRA. It noted that the Directive places restrictions on disclosure of these recordings, but interpreted the Directive as saying that the restrictions do not apply when responding to an OPRA request.

The language of the Directive doesn’t seem to support the GRC’s interpretation. I read the Directive as providing that OPRA requests for these records must be referred to the Division of Criminal Justice or the County Prosecutor for a determination of whether the public need for access outweighs the law enforcement interest in maintaining confidentiality.

It’s surprising the GRC chose to deal with the issue of the requirements of the Directive in the Dericks opinion, because it did not need to reach this question in this case. The GRC held that the recording in this case was exempt on another basis–a statute providing confidentiality to records pertaining to juveniles charged with delinquency.

Appellate Division Again Rules That MVR Created Under Police Chief’s Order Is Not A Criminal Investigatory Record

In an unpublished opinion, Ganzweig v. Lakewood Twp., an Appellate Division panel followed the appellate court’s 2016 published opinion in Paff v. Ocean County Prosecutor and held that OPRA’s criminal investigatory exemption does not apply to MVRs that are operated under a local police department’s policy.

Paff and Ganzweig present an issue that the Supreme Court will decide in its upcoming 2017-18 term: whether a police chief’s directive concerning MVRs is “required by law” and therefore does not satisfy one of the statutory requirements for a record covered by the criminal investigatory exemption. Judge Reisner dissented in Ganzweig, disagreeing with the Paff majority opinion’s view that a police chief’s directive meets the “required by law” standard.

The Supreme Court has not yet scheduled Paff for argument. I assume that Ganzweig will also go to the Supreme Court, due to the dissenting opinion. Presumably, the Supreme Court will decide this case together with the Paff case, since they involve the same issue.

Recent Case Law Emphasizes Importance of Attorney General Law Enforcement Directives Under OPRA

Do the Attorney General’s Law Enforcement Directives–policies that apply to all police departments throughout the State–establish exemptions under OPRA? Recent case law has answered this question affirmatively; the Attorney General’s directives are legal requirements that serve as a basis for confidentiality of government records.

The impact of these directives on OPRA requests had been somewhat in question because it was unclear whether such policies are binding legal requirements, and therefore should be treated the same as a regulation or other similar enactment. In the Lyndhurst opinion issued a few weeks ago, the Supreme Court settled this question. It held that these directives, issued by the State’s chief law enforcement officer, have “the force of law for police entities” (quoting and agreeing with the Appellate Division’s opinion in O’Shea v. Twp. of W. Milford).

This means that a confidentiality requirement in an Attorney General Directive is an exemption under OPRA. The Appellate Division and the GRC have reached this conclusion. In a March 2017 opinion, Paff v. Bergen County, the Appellate Division upheld the denial of an OPRA request to a sheriff’s office for the names of complainants and the officers who were the targets of the complaints, on the ground that this information must be kept confidential under the Attorney General’s Internal Affairs Guidelines.

The GRC takes the same position. See Reagan v. Camden County Prosecutor (July 25, 2017).


Appellate Division Rejects Common Law Request For Criminal Investigation Records

In a recent unpublished opinion, the Appellate Division upheld the denial of a request, made under the common law, for all documents pertaining to a criminal investigation. Paff v. NJ State Police.

The court’s decision is unremarkable; it’s based on the well-settled law that the interest in confidentiality of criminal investigations outweighs a requestor’s general interest in getting information about the investigation. What’s interesting about the case is that it confirms what I’ve previously noted–contrary to the press reports hailing the Supreme Court’s Lyndhurst opinion as requiring transparency of police operations, in fact the Supreme Court’s opinion ensures that there will be less public access to most police records.

The Paff court rejected the requestor’s claim that Lyndhurst compelled disclosure of the records in question. Instead, the Appellate Division said, the Supreme Court made clear that typically, the interest in confidentiality of law enforcement investigatory records outweighs the requestor’s interest in disclosure.

I anticipate that Paff is the first of many cases in which courts will rely on Lyndhurst to reject OPRA and common law efforts to obtain law enforcement records.


Important OPRA Issues Left Open By The Supreme Court’s Lyndhurst Opinion

The Supreme Court’s recent landmark opinion in the Lyndhurst case settled some key public records issues, with the Court holding that use of force reports are not exempt under OPRA; investigatory reports, witness statements and other investigatory records are confidential, under both OPRA and the common law; and dashcam videos of fatal police shootings are accessible only under the common law.

But the Court’s opinion also left open a number of major OPRA issues. Here are a few:

-Whether the criminal investigatory exemption applies to MVRs operated under a local police department’s policy. The Court will address this issue in Paff v. Ocean County Prosecutor, a case that has not yet been argued.

-Whether the criminal investigatory exemption applies to MVRs of a routine traffic stop. The Lyndhurst Court noted that it was not deciding this issue, because the facts before it clearly involved a criminal investigation.

-Application of OPRA’s privacy protection to the people shown in MVRs. The Court didn’t mention this issue in ordering release of the videos; presumably, no one involved in the case claimed a privacy interest. Again, this question will be considered by the Supreme Court in the Paff case.

-Accessibility of police body camera videos.

-Application of OPRA’s ongoing investigation exemption. The Court provided guidance on this section of OPRA, but it was mostly in the context of investigations into fatal police shootings. The parameters of this exemption will need to be more specifically defined in future cases dealing with the more common types of investigations–criminal investigations not involving police shootings, and the many investigations conducted by non-law enforcement agencies.


The Supreme Court’s Lyndhurst Opinion Ensures The Confidentiality Of Most Law Enforcement Records

The Supreme Court’s recent opinion in Lyndhurst has been hailed in press reports as a big victory for the transparency of police departments. But the opposite is true: the Lyndhurst opinion will enable law enforcement agencies to maintain the confidentiality of almost every record related to criminal investigations.

While the Court ordered disclosure of a few records in this case (use of force reports and the dashcam video of a fatal police shooting), it held that the overwhelming majority of police investigative materials are not accessible to the public under OPRA.

The Court held that investigatory reports, witness statements and similar investigatory records are confidential, under both OPRA and the common law. The Court also did not disturb the Appellate Division’s ruling in this case that OPRA exempts from disclosure as criminal investigatory records other items generated by the police in investigating a crime, such as log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, incident reports, and operations reports.

The Court also held that all dashcam videos in connection with a potential crime are confidential under OPRA. The Court said that only dashcam videos of fatal police shootings are accessible under the common law. This means that most dashcam videos, which are taken in criminal matters that do not involve a fatal police shooting, are confidential.

In short, the Court’s ruling means that nearly every record connected with a criminal investigation is not disclosable under OPRA.

It’s also notable that the opinion shows the Court’s recognition of the important law enforcement interests served by ensuring confidentiality of investigative records. For example, it emphasized that early disclosure of investigative materials is against the public interest. As another example, the Court rejected the plaintiff’s position that the criminal investigatory exemption is extremely narrow. The Court instead broadly construed the exemption’s language, concerning records that “pertain to an investigation,” as covering all records connected with the pursuit or apprehension of a suspect.

Public bodies should understand that the Lyndhurst Supreme Court opinion makes clear that OPRA favors the confidentiality of law enforcement records. This opinion supports a broad interpretation of the reach of OPRA’s criminal investigatory records exemption, and allows most records connected with a police investigation to be withheld.


Supreme Court’s Lyndhurst Opinion: Dashcam Videos Are Exempt Criminal Investigatory Records, Use of Force Reports Are Not

The Supreme Court issued its opinion in the Lyndhurst case today. This landmark ruling governs whether key criminal investigatory records–police vehicle dashcam recordings (MVRs), use of force reports (UFRs), investigative reports and witness statements–are confidential under OPRA.

The Supreme Court held that MVRs pertaining to a criminal matter are covered by OPRA’s criminal investigatory exemption. Similarly, it determined that investigative reports and witness statements concerning a criminal investigation are subject to this exemption.

The Court held that UFRs are not covered by the criminal investigatory exemption: because these documents are mandated by an Attorney General law enforcement directive, they are required by law to be made, and therefore do not satisfy OPRA’s standard for the criminal investigatory record exemption. In effect, the Court reinstated what had been the law since 2009, when the Appellate Division ruled, in O’Shea v. West Milford, that UFRs are not exempt for this reason.

The Supreme Court did order release of the MVRs at issue in this case under the common law, finding that the public’s strong interest in information about the police shooting of a civilian outweighed the confidentiality interests in the MVRs. But the Court reached the opposite conclusion with regard to investigative reports and witness statements, holding that they are confidential under the common law.

The Lyndhurst opinion is critically important for all public bodies, not just law enforcement agencies. In addition to analyzing the criminal investigatory records exemption for the first time, the Supreme Court also provided guidance, again for the first time, on the ongoing investigation exemption (section 3a of OPRA), which covers all investigations. In future posts, I’ll discuss the many implications of the opinion for public bodies in their administration of OPRA.

A Review of Recent OPRA Law Enforcement Cases

It’s amazing that during the first 15 years of OPRA’s existence, the courts issued only three precedential opinions on law enforcement records. But it can no longer be said that there’s little precedential law in this area. In the past several months, two important opinions on law enforcement and OPRA have come out, and several other significant law enforcement OPRA cases are about to be decided by the Supreme Court.

Here is a list of recent key law enforcement OPRA cases.

Gilleran v. Tp. of Bloomfield (Supreme Court): held that building surveillance videos are completely exempt from disclosure.

North Jersey Media v. Bergen Prosecutor (Appellate Division): held that a law enforcement agency may respond to an OPRA request for records concerning a possible pending investigation by saying it “can neither confirm nor deny the existence of responsive records.”

Paff v. Ocean County Prosecutor (pending in Supreme Court): whether police vehicle dashcam videos must be disclosed.

-North Jersey Media v. Lyndhurst (pending in Supreme Court): whether various criminal investigatory records must be disclosed.

Brennan v. Bergen County Prosecutor (pending in Supreme Court): whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction held by a prosecutor’s office

Significant Appellate Division Ruling: Internal Affairs Records Are Exempt From Disclosure

Today the Appellate Division held that records of internal affairs investigations of  law enforcement officers are exempt from disclosure under OPRA. Paff v. Bergen County.

The court specifically upheld the denial of a request for the names of complainants and the employees who were the targets of the complaints, on the ground that this information must be kept confidential under the Attorney General’s Internal Affairs Guidelines.

As discussed here, the GRC has previously said, correctly in my view, that internal affairs investigation and complaint records are also exempt because they are personnel records. The Appellate Division did not address this basis for confidentiality in the opinion issued today.

The Paff v. Bergen opinion is extremely significant. Although requestors frequently seek internal affairs records, this is the first appellate case to deal with the issue. Given the importance of this ruling, it’s surprising that the court did not make it a published, precedential opinion.

Supreme Court To Review A New OPRA Case

Today the Supreme Court added yet another OPRA case to its docket–the sixth one in the past year. In Paff v. Ocean County Prosecutor, the Court will consider two issues: (1) Does the criminal investigatory record exemption apply to a police dash cam video; and (2) If the video is subject to disclosure, can it be withheld due to the arrestee’s privacy interest?

The Court is already reviewing the first question in the Lyndhurst case; as explained here, it was obligated to accept review in the Paff case because there was a dissent in the Appellate Division on the criminal investigatory record issue. I expect that the Court will resolve the issue in Lyndhurst, since that case has already been argued.

The real importance of Paff v. Ocean County Prosecutor lies in the fact that the Court decided to grant review of the privacy question. The issue of the privacy rights of individuals shown in police dash cam videos is of great interest in New Jersey as well as throughout the country. And it will also be extremely significant, for OPRA  law in general, to have guidance from the Supreme Court on how to interpret and apply OPRA’s privacy exemption.

I’ve criticized the Appellate Division’s opinion in Paff for its mistaken ruling that people shown in police dash cam videos have no reasonable expectation of privacy. Hopefully, the Supreme Court will correct this erroneous holding.