In an unpublished opinion, Ganzweig v. Lakewood Twp., an Appellate Division panel followed the appellate court’s 2016 published opinion in Paff v. Ocean County Prosecutor and held that OPRA’s criminal investigatory exemption does not apply to MVRs that are operated under a local police department’s policy.

Paff and Ganzweig present an issue that the Supreme Court will decide in its upcoming 2017-18 term: whether a police chief’s directive concerning MVRs is “required by law” and therefore does not satisfy one of the statutory requirements for a record covered by the criminal investigatory exemption. Judge Reisner dissented in Ganzweig, disagreeing with the Paff majority opinion’s view that a police chief’s directive meets the “required by law” standard.

The Supreme Court has not yet scheduled Paff for argument. I assume that Ganzweig will also go to the Supreme Court, due to the dissenting opinion. Presumably, the Supreme Court will decide this case together with the Paff case, since they involve the same issue.

The Supreme Court’s recent landmark opinion in the Lyndhurst case settled some key public records issues, with the Court holding that use of force reports are not exempt under OPRA; investigatory reports, witness statements and other investigatory records are confidential, under both OPRA and the common law; and dashcam videos of fatal police shootings are accessible only under the common law.

But the Court’s opinion also left open a number of major OPRA issues. Here are a few:

-Whether the criminal investigatory exemption applies to MVRs operated under a local police department’s policy. The Court will address this issue in Paff v. Ocean County Prosecutor, a case that has not yet been argued.

-Whether the criminal investigatory exemption applies to MVRs of a routine traffic stop. The Lyndhurst Court noted that it was not deciding this issue, because the facts before it clearly involved a criminal investigation.

-Application of OPRA’s privacy protection to the people shown in MVRs. The Court didn’t mention this issue in ordering release of the videos; presumably, no one involved in the case claimed a privacy interest. Again, this question will be considered by the Supreme Court in the Paff case.

-Accessibility of police body camera videos.

-Application of OPRA’s ongoing investigation exemption. The Court provided guidance on this section of OPRA, but it was mostly in the context of investigations into fatal police shootings. The parameters of this exemption will need to be more specifically defined in future cases dealing with the more common types of investigations–criminal investigations not involving police shootings, and the many investigations conducted by non-law enforcement agencies.

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.

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.