Appellate Division: Police Dashcams Are Not Exempt Criminal Investigatory Records

The Appellate Division ruled today that police vehicle camera videos are not exempt criminal investigatory records under OPRA. Paff v. Ocean County Prosecutor. However, this opinion has little precedential impact, because there are conflicting Appellate Division opinions on the issue of whether such videos must be disclosed. In addition, this question will be resolved by the Supreme Court, perhaps by the end of this year.

The appellate court’s conclusion that criminal investigatory exemption did not apply rested on its determination that the police dashcam recordings were required by law to be made, maintained or kept, based on the fact that the township police chief had ordered all officers to activate their vehicle’s mobile recording device when making a traffic stop. The court specifically noted that its analysis and holding conflicted with that of the Appellate Division’s Lyndhurst opinion, where different appellate judges said that police vehicle videos are criminal investigatory records and are not required by law to be made, maintained or kept.

One member of the 3-judge panel in the Paff case, Judge Gilson, filed a dissenting opinion. The judge determined that the police chief’s order did not meet the “required by law” standard.

When there is a dissent, the losing party has an automatic right of appeal to the Supreme Court. I have no doubt that the prosecutor’s office will appeal, meaning that the Supreme Court will resolve whether the recordings are exempt.

And even before taking up the appeal in Paff, the Supreme Court may resolve the question in its consideration of the Lyndhurst case. That appeal has been pending with the Supreme Court sinceĀ  December 2015, so the Court is likely to issue an opinion around the end of 2016.

Due to the conflicting Appellate Division opinions, until the Supreme Court rules, there will be no clear answer as to whether OPRA requests for dashcam recordings must be granted.

 

 

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