In Paff v. Ocean County Prosecutor’s Office, issued today, the Supreme Court held that OPRA’s criminal investigatory record exemption applies to police dash cam recordings (MVRs) when the MVR is made pursuant to an order of the local police chief. The effect of this ruling is that the public cannot obtain, under OPRA, any MVR connected with a criminal investigation.

The issue in this case was whether a police chief’s order requiring his department’s officers to make MVRs in certain situations means the MVR is required by law to be made. If a record is required by law to be made, it does not satisfy the criminal investigatory record exemption. The Court ruled that an order issued by a police chief does not have the force of law, and therefore the exemption applied.

This opinion, together with the Court’s 2017 Lyndhurst opinion, means that all police MVRs pertaining to a criminal investigation are exempt under OPRA. In Lyndhurst, the Court held the MVR to be exempt because there was no requirement, either by the local police department or in Attorney General directives, that the MVR be made. In Paff, the Court made clear that MVRs are exempt even if a police department does have a requirement that MVRs be made.

An MVR may still be accessible under the common law, depending on the circumstances of the particular case. The Court remanded the Paff case for a determination of whether the MVRs should be disclosed under the common law.

The Court also held that OPRA’s privacy exemption did not preclude disclosure of the MVRs. The driver had objected to release on privacy grounds, but identified no specific privacy concerns. The Court indicated that there may be cases where a person’s reasonable expectation of privacy will warrant withholding or redacting a police video, but a generic privacy-based objection will not be sufficient.