People, like me, who believe in open government, were sorely disappointed last month when the state’s highest court, usually so protective of transparency, denied access to police dash-cam recordings under the Open Public Records Act (OPRA).
On August 13, 2018, a sharply divided New Jersey Supreme Court held, 4-3, in Paff v. Ocean County Prosecutor’s Office, that such recordings were not subject to disclosure under OPRA because they were not “required by law” to be made and constituted criminal investigatory records deemed confidential under OPRA.
Just 11 days later, however, a different New Jersey court determined that the same criminal investigatory exemption did not apply to police body cams.
The body cam case, Lewis v. County of Burlington, was decided by Mercer County Assignment Judge Mary Jacobson, who determined that body cam recordings are required by law to be made and thus do not qualify for the criminal investigatory records exemption.
What gives? It is hard to see a principled or policy basis for allowing public access to one type of recording and not another depending on whether the camera was worn by an officer or mounted on a police vehicle. The widespread use of cameras to record police stops is a relatively recently development but one that is taken on great significance in the face of police shootings of innocent black people and more general concerns about racial disparities in policing.
The required/not required distinction that was pivotal in the two cases derives from OPRA’s definition of criminal investigatory records, which are exempt from disclosure under the law. The exemption applies to a record “not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1
In the case of recordings made by dash cams, commonly referred to as MVRs or Mobile Video Recorders, there was no law or Attorney General guideline or directive that required them to be made, said the Supreme Court majority in the Paff case.
Dash Cam Recordings Denied
The recordings at issue there pertained to a January 2014 incident in which a driver who allegedly tried to dodge a traffic stop by Tuckerton police officer Justin Cherry was pursued into Barnegat and ultimately charged with eluding and resisting arrest and issued four summonses for motor vehicle violations. MVR equipment on two Barnegat police cars recorded the pursuit and arrest.
After the driver, Wendy Tucker, was pulled from her vehicle, Cherry allowed or caused a police dog to attack her as she lay on the ground, resulting in an internal investigations and charges of official misconduct and aggravated assault against Cherry. The Asbury Park Press obtained a police dash cam video of the attack which it posted on its website on December 5, 2017.
Several months after the incident, John Paff read about the charges against Cherry and asked the county prosecutor for video of the incident under both OPRA and the common law right of access. Paff is an open public records advocate who has been the plaintiff in a number of other important public records lawsuits and also blogs about government transparency.
The Ocean County Prosecutor’s Office denied access, citing the criminal investigation exemption as well as the “investigation in progress” exemption along with the mandate that a public agency “safeguard from public access” a citizen’s personal information where disclosure “would violate the citizen’s reasonable expectation of privacy.” Tucker’s lawyer also objected to releasing the tapes.
At the trial court level, Ocean County Superior Court Judge Vincent Grasso held that the dash cam recordings were subject to disclosure under OPRA, ordered the prosecutor to release them and dismissed the common law claim as moot.
His decision that the recordings were not exempt because they were required by law to be made and were thus not criminal investigatory records was based on a standing order by the Barnegat police chief requiring the use of MVRs during automobile stops. Recording starts automatically when a Barnegat officer activates the patrol car’s overheard lights.
In June 2016, the Appellate Division affirmed, 2 to 1. Judges John Kennedy and Jose Fuentes in the majority cited the Barnegat police chief’s view that the recordings are primarily intended to protect the officers in the discharge of their official duties and serve as a training device, rather than to fulfill an investigatory or evidentiary function. They also noted that the MVR recordings were made before there was any contemplation of a criminal investigation concerning the Tuckerton police officer and that they turned out to be relevant discovery in subsequently filed criminal and civil actions does not make them unfiled discovery within the meaning of N.J.S.A. 47:1A-9(b).
Judge Robert Gilson dissented on the ground that the Barnegat police chief’s order did not constitute a law because it did not have statewide application.
Four members of the Supreme Court, Justice Anne Patterson, joined by Chief Justice Stuart Rabner, and Justices Faustino Fernandez-Vina and Lee Solomon, agreed with Gilson that the dash cam recordings were exempt because the police chief’s requirement did not carry the force of law. “Here, the MVR recordings were not made and retained in compliance with any law or directive carrying the force of law,” wrote Patterson. “No statute gives a general order promulgated by the Barnegat Township Police Chief the force of law.”
Patterson added that if local police directives to their subordinates carried the force of law, “it would effectively write the criminal investigatory records exemption out of OPRA.”
The case was reversed and remanded back to the trial court for a decision on whether access should be granted under the common law balancing test, which requires proof that the requester’s interest in access to records outweighs the government’s interest in keeping them secret.
The three dissenting Justices, Barry Albin, Jaynee LaVecchia and Walter Timpone, found the chief’s directive did have the force of law because Barnegat officers did not have discretion to disobey it. In addition, a police chief’s authority to run a local department and “[p]rescribe the duties and assignments of all subordinates” is derived from a state statute, N.J.S.A. 40A:14-118. That delegation of power from the Legislature gave the chief’s directive the force of law and meant the MVRs were required by law, they said.
The dissenters warned that the majority opinion “drastically limits the public’s right to access video recordings made by police officers when they interact or have confrontations with members of the public,” and might “lead to greater misunderstanding and more distrust between the public and the police.”
The Supreme Court argument drew amici on both sides. Arguing against disclosure were the Attorney General’s office, the County Prosecutor’s Association of New Jersey, the New Jersey State Association of Chiefs of Police and the New Jersey Crime Victims Law Center. The proc-access amici were the New Jersey chapter of the American Civil Liberties Union, the Latino Leadership Alliance of New Jersey, Garden State Equality, People’s Organization for Progress, and the New Jersey Chapter of the Society for Professional Journalists.
Yes for Body Cams
In the Lewis case, Judge Jacobson found the body cam recordings to be required by law based on a 2015 directive from the Attorney General meant to provide guidance to police regarding “body worn cameras” and the recordings they produce. The directive, No. 2015-1, sets state-wide uniform standards for the use of body-worn cameras, including the circumstances under which they must be activated, when they can be turned off during an ongoing police-civilian encounter and the purposes for which they can be accessed, viewed, copied, or disseminated. Jacobson held that the directive was sufficiently comprehensive to meet the “required by law” test.
Both Paff and Lewis were decided against the precedential backdrop of North Jersey Media Group v. Lyndhurst, decided by the Supreme Court on July 11, 2017.
The case involved a high-speed chase in September 2014 that began in North Arlington and went through Lyndhurst and Rutherford, with several police departments taking part, before ending with the driver shot dead by police.
Reporters from two newspapers sought the names of the officers who fired the shots, as well as Use of Force Reports, dash-cam videos, activity logs, various investigative reports, and related items. Their requests, directed to the Lyndhurst North Arlington and Rutherford police, the Bergen County Police Department and the state police, all of whom were involved in the chase, were denied access based on the exemptions for criminal investigatory records and records of investigations in progress.
The unanimous opinion written by Chief Justice Rabner, allowed access to Use of Force Reports under OPRA because of an Attorney General policy requiring such reports in the event of a fatal police shooting. The policy, which sets standards for the use of force and deadly force, was “not a generic set of rules about record retention” but “a clear, pointed statement of policy from the chief law enforcement official to all officers who have used deadly force” and thus had “the force of law for police entities,” wrote Rabner.
As for three MVR recordings that had been withheld, Rabner mentioned that the court did not know if the officers acted pursuant to any local directives and thus, the “intriguing issue” raised in Paff was not before it. Instead, plaintiff North Jersey Media Group was relying on general retention schedules generated to implement the Destruction of Public Records Law to satisfy the “required by law” requirement.
The Court rejected that argument, saying no court had ever found that retention schedules carry the force of law under OPRA or its predecessor, the Right to Know Law, and because many criminal investigation records must be retained, such an outcome would render the criminal investigatory records exception meaningless.
Nevertheless, the Court held that the dash cam recordings should be released under the common law right of access because the public’s substantial interest in disclosure was greater than the “generic safety concerns” raised by the state.
Another Dash Cam Case
The NJ Supreme Court will soon get to grapple once more with the question of how dash cam recordings should be treated under OPRA, in the case of Ganzweig v. Lakewood Twp.
The case is very similar to Paff. A car pulled over for an illegal left turn in Lakewood was allowed to leave without a summons but the police, suspecting the vehicle’s occupants had provide fake names, pulled it over again and conducted a search which uncovered illegal drugs, resulting in criminal charges. Two patrol cars recorded the second stop and the ensuing search pursuant to a local police directive requiring MVR recordings.
The car’s occupants were indicted on drug charges and with hindering apprehension but those charges were later dropped in the face of an investigation into whether the officer who conducted the search did so illegally and falsified documents to conceal it.
A request for reports on the stop, along with audio and visual recordings and dispatch communications by Lakewood resident Shabsi Ganzweig was denied on the basis of the criminal investigation exception due to the pending criminal case against the officer.
Judge Grasso, the same trial judge as in the Paff case, found the denial violated OPRA and ordered the prosecutor to disclose the recording and reports.
In August 2017, an appellate court, explicitly following the Paff Appellate Division precedent, affirmed Grasso, finding that the criminal investigatory exemption did not apply to dash cam recordings and they were thus subject to public access under OPRA.
As in Paff, the Ganzweig appeals court split 2-1. Judges Ellen Koblitz and Thomas Sumners Jr. stated in their unpublished, per curiam opinion that they agreed with their colleagues’ decision in Paff. They also found that that the prosecutor had also failed to show that another OPRA exemption applied, one that shields information pertaining to an ongoing investigation if disclosure would be “inimical to the public interest,”
Dissenting judge Susan Reisner said she agreed with Gilson, who dissented in the Paff appellate case that a local police directive does not meet the required tby law to be made criterion.
Reisner’s dissent meant that there was an appeal as of right to the Supreme Court, which was announced on Jan. 26, 2018. It has not yet been argued.
NJ Appleseed 