The New Jersey Supreme Court Rules that MVR Recordings Constituted Criminal Investigatory Records and thus were Not Required to be Produced Pursuant to New Jersey’s Open Public Records Act

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of any opinion may not have been summarized.)

John Paff v. Ocean County Prosecutor’s Office (A-17-16) (078040)

Argued February 27, 2018 — Decided August 13, 2018

PATTERSON, J., writing for the Court.

In this appeal, the Court applies the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to recordings made by mobile video recorders (MVRs) in police vehicles in compliance with a municipal police chief’s general order.

In January 2014, a General Order was issued under the authority of the Chief of the Barnegat Township Police Department that applied only to that department. The Order instructed officers to record by MVR several categories of incidents. It is undisputed that the MVR recordings at the center of this appeal were made in compliance with the Order.

The MVR recordings at issue documented an incident in which police officers pursued and arrested a driver who had allegedly eluded an officer attempting a traffic stop. One officer’s decision to deploy a police dog during the arrest led to internal investigations and criminal charges against the officer. MVR equipment installed in two Barnegat Township police vehicles recorded the pursuit and arrest of the driver, who was charged with eluding and resisting arrest and was issued four summonses for motor vehicle violations.

Approximately four months after the driver’s arrest, plaintiff John Paff sought access to the MVR recordings under OPRA and the common law. The Ocean County Prosecutor’s Office (OCPO) opposed disclosure based on three OPRA provisions: the statute’s exclusion of a “criminal investigatory record” from the definition of a “government record,” N.J.S.A. 47:1A-1.1; its exemption for records pertaining to an “investigation in progress,” N.J.S.A. 47:1A-3(a); and its mandate that a public agency “safeguard from public access” a citizen’s personal information entrusted to it, where disclosure of that information “would violate the citizen’s reasonable expectation of privacy,” N.J.S.A. 47:1A-1. Counsel for the driver advised the OCPO of the driver’s objection “to the release of any audio or video tapes at this time, because of privacy and other related issues.”

Plaintiff filed a verified complaint and order to show cause, seeking access to the MVR recordings on the basis of OPRA and the common-law right of access. The trial court ordered disclosure of the MVR recordings. A divided Appellate Division panel affirmed the trial court’s determination. 446 N.J. Super. 163, 177 (App. Div. 2016). The panel’s dissenting member concluded that the MVR recordings constitute criminal investigatory records for purposes of N.J.S.A. 47:1A-1.1. Id. at 203 (Gilson, J., dissenting).

The OCPO appealed as of right with respect to the issue raised in the dissent. R. 2:2-1(a). The Court granted the OCPO’s petition for certification regarding the remaining issues addressed by the Appellate Division panel. 228 N.J. 403 (2016).

HELD: The Court reverses the judgment of the Appellate Division panel, concurring with the panel’s dissenting judge that the MVR recordings were not “required by law” within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. The Court agrees with the panel’s conclusion that the recordings are not within OPRA’s “investigations in progress” provision, and that OPRA’s privacy clause does not exempt the recordings from disclosure. The Court remands the matter to the trial court for consideration of plaintiff’s claim of a common-law right of access to the MVR recordings.

1. The Legislature enacted OPRA to promote transparency in the operation of government, declaring it public policy that government records “shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest,” and that any limitation of the right of action accorded by OPRA “shall be construed in favor of the public’s right of access.” N.J.S.A. 47:1A-1. OPRA imposes on public agencies “the burden of proving that the denial of access is authorized by law.” N.J.S.A. 47:1A-6. This appeal requires interpretation of three of OPRA’s exemptions. (pp. 17-18)

2. The Court first considers the criminal investigatory records exemption set forth in N.J.S.A. 47:1A-1.1. “[C]riminal investigatory records” are among the several categories of records that the statute excludes from its definition of “government record[s].” Ibid. That term is defined 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.” Ibid. Accordingly, an agency seeking to withhold a record from disclosure as a criminal investigatory record must satisfy “both prongs of the exception” by demonstrating that the record is not required by law to be made, maintained or kept on file, and that it “pertains” to a criminal investigation or related civil enforcement proceeding. N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 556 (2017). (pp. 18-28)

In Lyndhurst, the Court applied the “not required by law” prong to Use of Force Reports (UFRs) prepared in accordance with a policy promulgated by the Attorney General. Id. at 565. Recognizing the Attorney General’s role as New Jersey’s chief law enforcement officer, with the authority to adopt guidelines, directives, and policies that bind police departments statewide, the Court deemed the policy to have “the force of law for police entities” and concluded that the defendant municipality failed to meet its burden to demonstrate that the UFRs were “not required by law to be made, maintained or kept on file” under N.J.S.A. 47:1A-1.1. See ibid. The Court finds significant distinctions between the Attorney General’s Use of Force Policy in Lyndhurst and the Barnegat Township Police Chief’s General Order. First, no statute gives a General Order promulgated by the Barnegat Township Police Chief the force of law. N.J.S.A. 40A:14-118, cited by the Appellate Division majority in support of its conclusion that the General Order was “required by law,” falls short of the mark. That statute empowers a municipality to create a police department and to appoint a police chief as the head of that department, and generally describes the duties of a police chief. It does not grant to a municipal police chief authority analogous to the Attorney General’s statutory power to adopt guidelines, directives, and policies that bind law enforcement throughout New Jersey. The 1981 amendment to N.J.S.A. 40A:14-118 redefined the relationship between a municipal governing body and the chief of police; it did nothing to invest police chiefs with the authority to impose binding legal obligations on their subordinates. If, as the Appellate Division majority concluded, a municipal police chief’s directive to his or her subordinates were deemed to carry the force of law, the exemption would be limited to criminal investigatory records that are not addressed in any order or instruction from a police chief to his or her officers. Such an interpretation would effectively write the criminal investigatory records exemption out of OPRA, contrary to rules of statutory construction. Here, the MVR recordings were not made and retained in compliance with any law or directive carrying the force of law. The OCPO has therefore satisfied the first prong of N.J.S.A. 47:1A-1.1’s standard. (pp. 19-26)

In Lyndhurst, the Court held that the MVR recordings in dispute met the second prong of the test for OPRA’s criminal investigatory records exemption because they pertained to two investigations: the officers’ investigation of “actual or potential violations of criminal law,” and the investigation by the Attorney General’s Shooting Response Team into the fatal shooting of one suspect. 229 N.J. at 569. That holding governs application of N.J.S.A. 47:1A-1.1’s requirement that the disputed record “pertain[] to any criminal investigation” in this appeal. By the time plaintiff sought the MVR recordings, those recordings pertained to not one but several investigations: the criminal investigation of the driver for eluding and resisting arrest, and the internal affairs and criminal investigations of the police officer who deployed the police dog. Accordingly, the OCPO has satisfied the second prong of OPRA’s criminal investigatory records exemption. N.J.S.A. 47:1A-1.1. That exemption warrants the OCPO’s decision to withhold the MVR recordings from disclosure under OPRA, and the Court reverses the Appellate Division panel’s determination on that ground. (pp. 26-28)

3. The Court next considers OPRA’s “investigations in progress” exemption, prescribed by N.J.S.A. 47:1A-3(a). In order to invoke that exemption, a public agency must demonstrate that “(1) the requested records ‘pertain to an investigation in progress by any public agency,’ (2) disclosure will ‘be inimical to the public interest,’ and (3) the records were not available to the public before the investigation began.” 229 N.J. at 573 (quoting N.J.S.A. 47:1A-3(a)). The OCPO has met N.J.S.A. 47:1A-3(a)’s first and third requirements. The OCPO, however, has failed to satisfy the second prong of the N.J.S.A. 47:1A-3(a) standard, which requires proof that disclosure would be “inimical to the public interest.” In Lyndhurst, the Court considered whether disclosure of the MVR recordings of a police shooting would be “inimical to the public interest,” 229 N.J. at 575-77, and noted that “officer safety, the reliability of ongoing investigations, and transparency” are relevant to the question, id. at 576. Here, the OCPO has identified no threat to officer safety, so the first component of the test weighs in favor of disclosure. Here, as in Lyndhurst, there is no assertion that when plaintiff sought the MVR recordings four months after the incident depicted in those recordings, any eyewitness interview relevant to the criminal investigation of the driver, or the criminal or internal affairs investigations of the police officer, had yet to be conducted. The second factor identified in Lyndhurst therefore supports disclosure. Finally, there is a strong public interest in the interaction of police officers and the driver, and the setting of this case. The final factor identified in Lyndhurst thus weighs in plaintiff’s favor. Accordingly, the Court agrees with the Appellate Division panel that the OCPO did not sustain its burden to show that the MVR recordings are within OPRA’s “investigation in progress” exemption. (pp. 28-31)

4. Finally, OPRA’s privacy clause instructs a public agency to refrain from disclosing “a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1. In Burnett v. County of Bergen, the Court viewed OPRA’s legislative history to “offer[] direct support for a balancing test that weighs both the public’s strong interest in disclosure with the need to safeguard from public access personal information that would violate a reasonable expectation of privacy,” 198 N.J. 408, 427 (2009), and identified seven factors to be relevant to that balancing test, ibid. (relying on Doe v. Poritz, 142 N.J. 1, 88 (1995)). Here, the MVR recordings depicted a driver’s arrest in a public place. The driver’s face is not shown, and the recordings disclosed no private information. Moreover, when the driver objected to disclosure of the recordings, she identified no specific privacy concerns. The driver’s privacy interest did not warrant the OCPO’s decision to withhold recordings from disclosure in this case. In other settings, a third party’s reasonable expectation of privacy may warrant withholding a record from disclosure. In making these sensitive determinations, courts should give serious consideration to the objections of individuals whose privacy interests are implicated. The Court reminds objecting parties and their attorneys that a generic objection based on privacy gives a court scant basis to explore the issue, and that any privacy concerns about a disclosure sought pursuant to OPRA or the common law should be explained in detail. (pp. 32-34)

REVERSED and REMANDED.

JUSTICE ALBIN, dissenting, expresses the view that the General Order has the force of law and that, because the video recording was “required by law to be made,” it does not constitute an exempt record under OPRA’s criminal investigatory records exception. Justice Albin notes that, through a 1981 legislative amendment to N.J.S.A. 40A:14-118, the Legislature delegated to the Chief of Police the power to issue the General Order to his officers, and reasons that the chief of police’s power to bind police officers to follow a general order is in no meaningful way distinguishable from the Attorney General’s power to bind police forces to follow his directives. According to Justice Albin, the distinction created by the majority is arbitrary and undermines the effectiveness of OPRA in an area where the transparency of the government’s conduct in its affairs with the public is of critical importance to an informed citizenry. Justice Albin notes that the Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained.

CHIEF JUSTICE RABNER and JUSTICES FERNANDEZ-VINA and SOLOMON join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICES LaVECCHIA and TIMPONE join.

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