Posted on Thursday, September 8th, 2016.
T&P Client Alert
Police Dashboard Camera Videos Public Records Under OPRA
In Paff v. Ocean County Prosecutor’s Office, the New Jersey Appellate Division recently ruled that a motor vehicle recording (MVR) filmed by a police car dashboard camera is a public document under the Open Public Records Act (“OPRA”) and should be released pursuant to OPRA requests. The 2-1 decision held that the MVR was not contemplated by the legislature to be records of criminal investigations which would be exempt from disclosure under OPRA.
MVR recordings are made from devices maintained by police departments and typically are used to record police interactions with others during motor vehicle stops, arrests and other engagements. In the instant case, the specific video plaintiff sought to obtain was part of a criminal investigation by the Ocean County Prosecutor’s Office into a traffic stop conducted by a Barnegat Township police officer who allegedly allowed a police dog to attack a woman involved in the traffic stop. The MVR recording was made because of a Barnegat Township Police Department policy that required all officers to activate their MVRs when making a traffic or law enforcement stop. This policy, according to the court, removed the MVR recording from the criminal investigatory record exemption which OPRA defines as a record “not required” to be made or kept on file by a law enforcement agency. As such, the court determined that because the recording was made pursuant to an Order from the Chief of Police, it was “required by law” under the statute.
The court held, contrary to the arguments made by the Ocean County Prosecutor’s Office and the New Jersey Attorney General’s Office, that the MVR is not a “criminal investigatory record,” which is defined under OPRA as “a record which is 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.” Id. at *8. In order to prove that a record is a criminal investigatory record, the public agency must show that the record: (1) is not required by law to be made and (2) pertains to a criminal investigation or related civil enforcement proceeding. Id.
On July 18, 2016 the New Jersey Supreme Court granted certification in this case. In the meantime, the Ocean County’s Prosecutor’s Office has requested a stay of the release of the video. We will continue to update our law enforcement clients as any decisions are released.