In a recent post, I pointed out that in Paff v. Ocean County Prosecutor, the Appellate Division rejected a privacy challenge to the disclosure of a police vehicle video under OPRA, based on the incorrect premise that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” In an opinion issued today, in an unrelated case, the Supreme Court confirmed that the appellate panel’s premise is erroneous.
The Supreme Court case, State v. Stein, dealt with discovery in a municipal court DWI prosecution. The Court held that police video recordings of the defendant, whether from a dashcam or made at a police station, must be provided to the defendant in discovery. The Court also stated that a judge may redact any portion of the video that “captures people not relevant to the proceedings and whose privacy rights may be infringed….”
Stein is not an OPRA case, so the Supreme Court did not mention OPRA or the Paff opinion. Still, this case will have a significant impact on future OPRA privacy claims concerning police camera videos. The Supreme Court’s recognition that these videos include people whose privacy rights may be infringed is at odds with the Paff opinion’s belief that no person in a vehicle has a reasonable expectation of privacy with regard to the videos.
However, because Stein is not an OPRA case, for the time being, police video OPRA privacy claims will be governed by the incorrect standard set out in the Paff Appellate Division opinion.
Today the Supreme Court announced that it has granted review of the Appellate Division’s opinion in Paff v. Galloway Township. As I’ve noted, this is an extraordinarily important case, involving the question of whether OPRA requires public bodies to produce requested reports from the information contained in computer databases.
This is the fifth OPRA case currently pending before the Court, joining Verry v. Franklin Fire District No. 1 (whether a volunteer fire company that is a member of a Fire District is subject to OPRA), Lyndhurst (criminal investigatory records), Gilleran (security exemptions), and Firemen’s Assn (declaratory judgment procedure and privacy issues).
And one more OPRA case will be before the Supreme Court soon. The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, concerning police dashcam recordings, had a dissenting opinion. This gives the losing party an automatic right of appeal to the Supreme Court, and the Ocean County Prosecutor has indicated that an appeal will be filed.
It’s clear that outside activity records of public employees are exempt under OPRA. In an unpublished opinion issued today, the Appellate Division emphasized that these records also are typically not accessible under the common law. New York Public Radio v. Gov. Office.
The requestor in this case sought outside activity notifications submitted to the Governor’s Office’s ethics liaison officer. The trial judge ruled that these are exempt under OPRA because they are personnel records, but ordered disclosure under the common law. The Appellate Division disagreed. It held that the significant privacy interest of employees in their outside activities outweighs the limited public interest in disclosure of this information.
The court also noted the importance of maintaining the confidentiality of ethics communications, to ensure that public employees will not be deterred from making such inquiries.
The Appellate Division also dealt with a separate OPRA request that presented the issue of whether the deliberative process privilege applied to a “Town Priority List” used by the Governor’s Office. The appellate court again reversed the trial court’s disclosure order. It ruled that this list was covered by the deliberative process privilege, in that it was a key component of the Governor’s Office’s decisionmaking process regarding allocation of resources.
Over the past week, the Appellate Division has issued two OPRA opinions with strikingly different views of individuals’ privacy rights. The Appellate Division’s recent police dashcam video opinion, discussed here, dealt a blow to privacy interests in ruling that people shown in such videos have no reasonable expectation of privacy. A few days later, a different Appellate Division panel upheld privacy rights in concluding that home addresses may be entitled to privacy protection under OPRA. Brennan v. Bergen County Prosecutor’s Office.
The issue in the case was whether Bergen County had to disclose the names and addresses of people who bid at an auction of sports memorabilia held by the County. (The memorabilia had been seized from an individual by the prosecutor’s office). The documents showing the names and addresses were non-exempt government records, but the court held that OPRA’s privacy provision rendered this personal information confidential.
The court said that the bidders had a reasonable expectation that their names and addresses would be private. Notably, the court rejected the argument typically expressed by requestors seeking home addresses, that there’s no privacy interest because home addresses are publicly available. The court emphasized that there is a strong privacy interest when name and address is linked with other information about an individual; in this case, the additional information was that the person bought memorabilia, indicating that he may have a valuable collection. The court determined that the bidders had a genuine concern that they could become the targets of theft.
The court also noted another significant factor favoring privacy: the absence of confidentiality would deter bidders from entering an auction, thereby harming governments’ abilities to hold auctions to generate income.
The court concluded that these confidentiality factors outweighed the requestor’s limited interest in disclosure of the names and addresses. The panel reached the same result with regard to the common law claim for disclosure of this information.
As this blog has previously noted, there is little case law guidance on whether home addresses are protected under OPRA. Although the Brennan opinion is unpublished, it is still an extremely important case in showing that home addresses are entitled to privacy protection.
The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, requiring disclosure of police dashcam videos, turns primarily on whether such videos are criminal investigatory records under OPRA. But the court also held that the footage requested could not be withheld to protect the privacy interests of the people in the video. The court showed surprisingly little regard for citizens’ privacy rights in reaching this conclusion.
The key to the privacy ruling was the court’s determination that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” This is simply incorrect–surely drivers and other individuals have a reasonable expectation that their conversations with a police officer will be private, and will not be available to be placed on YouTube for anyone to view.
The court said that there is no harm caused by widespread disclosure of these videos because the public has a right to see them under OPRA. This statement begs the question that must be decided whenever a privacy interest is at stake: whether a person’s reasonable expectation of privacy regarding the specific record outweighs the need for public access to that record. OPRA’s privacy requirement is meaningless if, as the court suggested, there can be no harm caused by the disclosure of a government record.
These statements by the Appellate Division effectively mean that a valid privacy claim cannot be made when there is an OPRA request for a dashcam video. Hopefully, when the Supreme Court reviews this case, it will correct this unfortunate restriction on privacy rights.