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.

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