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July 7, 2016Download PDF

What is a "Law" – How an OPRA request for police dashboard video left two Appellate Division panels in conflict and one split on what is a "law."

In Paff v. Ocean Cnty. Prosecutor’s Office, available here, the Appellate Division was charged to answer a seemingly straightforward question: does the public have a right to access recordings from the mobile video recorders (MVRs) in police vehicles under the Open Public Records Act (OPRA), N.J.S.A. 48:1A-1 to -13. The plaintiff—an open government records advocate—sought recordings made by MVRs of a police chase joined by Barnegat police vehicles after a suspect eluded a Tuckerton Borough police officer’s attempt to effect a motor vehicle stop. The Barnegat MVRs captured the Tuckerton police officer and his police dog during the arrest of the fleeing driver. The driver was charged with eluding, resisting, and various motor vehicle offenses.

The Tuckerton police officer who initiated the stop was later subjected to an internal affairs investigation, and was charged with second-degree official misconduct, third degree aggravated assault, and other offenses from his use of the police dog during the arrest. Plaintiff sought the videos captured by Barnegat MVRs under OPRA.

OPRA generally provides the public with a broad right of access to government records. There are exceptions to the general rule, which the Legislature exempted from disclosure. One such exception is “criminal investigatory records.” See N.J.S.A. 47:1A-1.1. OPRA defines “criminal investigatory records” as documents that “pertain[] to any criminal investigation or related civil enforcement proceeding” and is “not required by law to be made, maintained or kept on file.” N. Jersey Media Grp. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 104 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015),

The Law Division in Paff ordered the MVR videos to be released. It reasoned that the videos were “required by law” to be made because a general order issued by the police chief required the recordings anytime officers activated the overhead lights on their police vehicles. Since the recordings were “required by law,” the exception did not apply.

The Appellate Division had to determine whether the Law Division rightly found that no exception under OPRA applied. What complicated this seemingly straightforward legal challenge was that a different appellate panel in Lyndhurst held just the opposite, i.e., that the “criminal investigation records” exception exempted disclosure of MVR police recordings.

The court in Lyndhurst found that MVR recordings are not “required by law” because they were simply records subject to “a generic record retention policy, or an internal agency directive of a public official.” The court reasoned that a recording generated under this directive or internal policy is not one that is “required by law” because its creation was not “mandated by a statute, regulation, executive order, or judicial decision.” The court also ruled that MVR videos “pertain” to a criminal investigation because “when an officer turns on a mobile video recorder to document a traffic stop or pursuit of a suspected criminal violation of law, that recording may pertain to a ‘criminal investigation,’ albeit in its earliest stages.”

Faced with the same issue, the panel in Paff split 2-1, with the majority affirming release of the records. The majority expressly disagreed with Lyndhurst, finding that the MVR recordings did not pertain to a criminal investigation because a general order by the Barnegat Chief of Police mandated that MVR recordings be made anytime vehicle overhead lights are activated, and thus the MVR recordings here were generated before a “criminal investigation” was underway. The same policy also meant the recordings were “required by law.” In contrast to Lyndhurst, the majority reasoned that the enabling statute allowing municipalities to create police departments and appoint police chiefs meant that chiefs’ general orders had the force of law.

In dissent, Judge Gilson disagreed with both conclusions. Judge Gilson argued that a record created because of a local law enforcement order is not “equivalent of a record required by law.” He reasoned that OPRA should not be read to support the conclusion that the term “law” should be read broadly. Judge Gilson believed that the majority’s conclusion would eviscerate the “criminal investigatory records” exception:

Applying the majority’s reasoning, any time there is a written directive calling for a document to be created in a police department that document would be required by law to be made, and, thus, would not come within the ambit of [the] “criminal investigatory records” [exception]. It is hard to imagine that there are any criminal investigatory documents created in a police department for which there is not an order, directive or instructions calling for that document to be prepared. For example, if a police department issued instruction that officers were to prepare reports concerning all criminal investigations, under the reasoning used by the majority any and all such reports would be subject to disclosure under OPRA.
Judge Gilson called for a reading of “law” to require “statewide application” and not merely a “local order.”

Judge Gilson likewise reasoned that the MVR videos here “pertain[ed]” to a criminal investigation, despite the general order requiring MVR recordings anytime overhead lights are activated. Applying the plain meaning of the word “pertains” to the facts of this case, Judge Gilson found that the MVR recordings pertained to an investigation of eluding arrest, relying on the New Jersey’s Supreme Court holding that an investigation begins when “the inquiry departs from the routine and focuses with special intensity upon a particular party.” See McClain v. Coll. Hosp., 99 N.J. 346, 357 (1985).

Paff was decided on June 30, 2016. The Supreme Court has already granted leave to appeal in Lyndhurst, and no doubt they will face another request in Paff. To see what happens generally when two panels disagree on the same issue, check out my colleague’s synopsis here.