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.