The Supreme Court held oral argument a few days ago in the Lyndhurst case, involving OPRA’s criminal investigatory records provisions. The outcome of a case cannot be predicted with absolute certainty based on what is said at the argument, but nevertheless, after watching the argument, I’ll make a few predictions about what the Supreme Court will rule in this important appeal.

(1) Most records concerning a criminal investigation will be confidential

The requestor here argued in the trial court and Appellate Division that all records that are routinely part of an investigation must be disclosed, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports.

However, the requestor apparently withdrew this argument before the Supreme Court. Its attorney told the justices his client’s interest primarily was to obtain disclosure of police dash cam videos and use of force reports, and there was no discussion during the argument of all the other records mentioned above. This means that the Appellate Division’s ruling that the above records are exempt under OPRA should stand.

(2) Most police dash cam videos related to a criminal matter will be confidential, at least while a criminal prosecution is pending

The justices did not indicate where they stand on the issue of whether a dash cam video is an exempt criminal investigatory record, but they were clearly uncomfortable with requiring immediate disclosure of such videos. Several justices recognized that disclosure can corrupt witnesses’ testimony about the incident and thereby harm a prosecution. Also, everyone seemed to agree that privacy interests of individuals shown in the video must be considered.

I think the Court will say that these videos may be withheld during an investigation, pursuant to NJSA 47:1A-3’s “inimical to the public interest” standard.

(3) Use of force reports directly related to a criminal matter will be held confidential

I saw no consensus on the question of access to UFRs, so it’s difficult to make a prediction on this one. However, some justices noted the case law that says that administrative directives do not meet the “required by law” standard, which suggests that they may reject the requestor’s argument that UFRs are not criminal investigatory records because they are required by an Attorney General’s directive.