This New York Times article of April 26, 2015 discusses issues that are being raised across the country with regard to giving the public full access to the recordings made by police body and motor vehicle cameras. The article’s title–“Downside of Police Body Cameras: Your Arrest Hits YouTube”– nicely summarizes the problem: privacy interests may be harmed if a video of any person’s interaction with the police is available to the public. This concern results from the assumption that public record laws would require disclosure to a requestor of any police camera video recording. The article notes that many states are seeking to amend their laws to preclude access to such videos.
New Jersey law does not have a specific provision governing disclosure of police camera videos, but the Appellate Division is considering the question of whether these videos fall within one of OPRA’s exemptions from disclosure. See this New Jersey OPRA Law Reporter post. The Appellate Division case focuses on the applicability of OPRA’s sections affording confidentiality to records in criminal investigations, but as the Times article shows, the statute’s requirement that agencies protect individuals’ privacy interests should also be taken into account in considering whether videos should be released.
In New Jersey, police departments should expect to confront the privacy issue whenever they receive requests for disclosure of a video, regardless of whether a criminal investigation is involved. The police come in contact with members of the public in a variety of ways that do not involve criminal activity or an arrest, from routine traffic stops to helping at the scene of an accident. OPRA custodians for police departments will have to deal with the sensitive issue of whether releasing videos in these situations–in effect, allowing them to be posted on the internet– will harm the privacy interests of the individuals shown in the videos.
Until a court addresses this issue, custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest against the affected individual’s privacy interest.