Can the Public OPRA Police Videos?

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Rotary Camera Donald Scarinci

The Supreme Court of New Jersey will determine whether the public can rely on the state’s Open Public Records Act (OPRA) to obtain footage from mobile video recorders in police vehicles.

With law enforcement under growing scrutiny, dash cam footage can provide key evidence of the interactions between police officers and the public. A study by the Police Foundation on the use of police cameras in one California municipality found that video recording reduced use of force incidents by 2.5 times. In addition, the number of citizen complaints dropped dramatically from 28 to 3. The question now is when the videos should be available to the public.

OPRA Exception for Criminal Investigatory Records

In refusing to turn over police video recordings, agencies typically maintain that the footage could be used as evidence in a future prosecution. However, in order for OPRA’s “criminal investigatory record” to apply, the records custodian must meet two specific requirements. They must show that the documents sought are “not required by law to be made,” and that they “pertain to a criminal investigation or related civil enforcement proceeding.” O’Shea v. Township of West Milford, 410 N.J. Super. 371, 381-82 (App. Div. 2009). So far, the New Jersey appeals court have not agreed how to apply the standard to dash cam videos.

NJ Appeals Court Reach Differing Conclusions

In Paff v. Ocean County Prosecutor’s Office, the Appellate Division recently held that video footage recorded from a police cruiser does not qualify as a “criminal investigatory record” that can be withheld from the public under OPRA. The suit involved a Tuckerton Borough police officer’s arrest of a driver for eluding and motor vehicle offenses, which later resulted in allegations of police misconduct. The Ocean County Prosecutor’s Office refused to provide the recordings, citing that they were exempt from disclosure under OPRA.

By a vote of 2-1, the appeals court upheld a trial court decision that the dash cam footage should be released under OPRA. In reaching its decision, the panel highlighted that the Barnegat Township officers were to activate the mobile video recorders when making a traffic or law enforcement stops. It further noted that they were automatically activated when the patrol vehicle switched on its overhead lights and, accordingly, did not relate to a specific investigation.

The court’s holding contradicts another Appellate Division decision regarding dash cam videos. In North Jersey Media Group, Inc. v. Township of Lyndhurst, a New Jersey appeals court found that the recordings should not be released under OPRA. The court concluded that a record subject to “a generic record retention policy, or an internal agency directive of a public official” is not one that is required to be made by law. Accordingly, a general order that police activate their video recording devices does not constitute a “law” within the meaning of OPRA’s criminal investigatory records exception.

What’s Next?

The New Jersey Supreme Court had already agreed to hear North Jersey Media Group, Inc. v. Township of Lyndhurst. Because the Appellate Division split 2-1 in Paff v. Ocean County Prosecutor’s Office, the parties have an automatic right to appeal to the state’s highest court.

New Jersey is not the only state confronting these issues. The footage of police interacting with the public is becoming increasingly common as more departments require their officers to wear body cameras or activate recording devices in their vehicles. In the wake of recent police shootings, journalists, and public advocacy groups are also seeking to access the footage to substantiate allegations of misconduct. In most cases, courts have ruled in favor of disclosure. It will be interesting to see if New Jersey’s highest court does the same.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Can the Public OPRA Police Videos?