In an opinion issued today, the Appellate Division held that police body-worn camera footage does not fall within OPRA’s criminal investigatory records exemption. Rivera v. Tp. of Bloomfield.

This exemption applies only to a record pertaining to a criminal investigation that is not required by law to be made, maintained or kept on file. The footage here pertained to a criminal investigation into a 2017 police shooting, but the Appellate Division determined that the “not required by law” prong of the exemption was not satisfied. The court said that an Attorney General Law Enforcement Directive governing police body cameras constituted such a requirement of law, in accordance with Supreme Court OPRA precedent.

Although this is the first appellate opinion to address the important issue of OPRA requests for body camera video, the opinion is unpublished and therefore not precedential. Perhaps the court saw no need to publish the opinion because the law is settled that Attorney General directives have the force of law under OPRA, and the body camera directive clearly requires that footage be made, maintained and kept on file.

It’s important to note that the court did indicate that body camera footage may be withheld, under appropriate circumstances, even though the criminal investigatory exemption does not apply. The pertinent AG Directive gives the prosecutor the discretion to determine, on a case-by-case basis, that law enforcement interests require maintaining confidentiality of the video. However, in this case, according to the court, the prosecutor did not explain the need to maintain confidentiality.