Lead Opinion
Plaintiff John Paff sought access to the MVR recordings under OPRA and the common law, and filed suit when defendant the Ocean County Prosecutor's Office (OCPO) declined his request. The OCPO opposed disclosure of the MVR recordings 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
The trial court rejected the OCPO's arguments and ordered disclosure of the MVR recordings. A divided Appellate Division panel affirmed the trial court's determination.
We reverse the judgment of the Appellate Division panel. We concur 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. We agree with the Appellate Division 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. We remand the matter to the trial court for its consideration of plaintiff's claim of a common-law right of access to the MVR recordings.
I.
A.
1.
On January 9, 2014, the Barnegat Township Police Department issued a revised version of its General
The General Order stated the Barnegat Township Police Department's policy "to use [MVRs] in order to protect the members of this agency and to record information related to motorist contacts and other patrol related activities." The General Order instructed officers to record by MVR several categories of incidents. The incidents to be recorded included, among others, "[a]ll traffic stops, criminal enforcement stops, motorist aid situations, motor vehicle collisions, and pedestrian contacts in their entirety"; "[p]olice pursuits as defined by department policy"; "[m]ajor crime scenes"; and "[s]ituations which arise wherein the officer by reason of training or experience determines that the incident should be recorded."
Noting that "[t]he record function of the MVR equipment is automatically initiated when the patrol vehicle's emergency lights are activated or the wireless microphone is turned on," the General Order barred officers from deactivating the MVR's recording function when the vehicle's emergency lights are activated "except for dismounted posts or traffic details." Pursuant to the General Order, officers were prohibited from deactivating an MVR once it was activated to document an "incident or [motor vehicle] stop" until the conclusion of the incident or the release of the detained vehicle.
It is undisputed that the MVR recordings at the center of this appeal were made in compliance with the General Order.
2.
On January 29, 2014, a Tuckerton Borough police officer on patrol activated his overhead lights and attempted to pull over a
MVR equipment installed in two Barnegat Township police vehicles recorded the police pursuit and arrest of the driver. The trial court found, and the parties agree, that the recordings documented the interaction between the driver and the police dog.
As a result of the contact between the police dog and the driver, the OCPO and the Tuckerton Police Department initiated internal affairs investigations of the Tuckerton Borough police officer. The OCPO later charged the officer with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2 ; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ;
Approximately four months after the driver's arrest, plaintiff wrote to the OCPO. He stated that he had read in a local newspaper that "the police dog's interaction with [the driver] may have been captured by a video camera that is owned or under the control of Barnegat Township."
The OCPO objected to the release of the requested MVR recordings on the ground that they involved a "criminal investigation in progress, pursuant to N.J.S.A. 47:1A-3 as well as an internal affairs matter," under the New Jersey Attorney General's Guidelines on Internal Affairs and Procedures.
Plaintiff contested the OCPO's reliance on N.J.S.A. 47:1A-3. He argued that any record that was public before a criminal investigation or internal affairs investigation would not be exempt from production under OPRA. The OCPO responded by reiterating its objections to the production of the MVR recordings.
By letter dated June 30, 2014, counsel for the driver advised the OCPO of the driver's objection "to the release of any
B.
Plaintiff filed a verified complaint and order to show cause, seeking access to the MVR recordings on the basis of OPRA and
In its initial opinion in this matter, the trial court found the MVR recordings to be government records under N.J.S.A. 47:1A-1.1. The court stated that "at this juncture," the OCPO had failed to meet its burden to demonstrate that the MVR recordings were criminal investigatory records under N.J.S.A. 47:1A-1.1. It held that the OCPO had not proven that the recordings were "not required by law," as N.J.S.A. 47:1A-1.1 mandates in order for a record to be exempt from OPRA, and stated that it was unclear whether the recordings were made as part of an investigation.
The trial court also rejected the OCPO's contention that the MVR recordings were subject to OPRA's exemption for records pertaining to an "investigation in progress," pursuant to N.J.S.A. 47:1A-3(a). It reasoned that any investigation regarding the police officer and the driver did not commence until after the MVR cameras captured the incident. The court did not reach the question whether the OCPO had met OPRA's second requirement for the "investigation in progress" exemption: that the release of the recordings would be "inimical to the public interest."
Finally, the trial court held that the driver had no reasonable expectation of privacy that would justify the OCPO's denial of plaintiff's request pursuant to OPRA's privacy clause, N.J.S.A. 47:1A-1.
Following further briefing, in camera review of the MVR recordings, and a second oral argument, the trial court issued a supplemental opinion. It determined that by virtue of the Barnegat Township Police Department's General Order, which it construed to carry the "force of law," the MVR recordings were "required by law" to be made, and were therefore outside the scope of N.J.S.A. 47:1A-1.1's exemption for criminal investigatory records. The court did not reach that provision's additional requirement that the recordings pertain to "any criminal investigation or related civil enforcement proceeding." N.J.S.A. 47:1A-1.1.
The trial court reiterated its prior holding that the release of the recordings would not violate the driver's reasonable expectation of privacy because the recordings depicted a "motor vehicle traffic stop in a public area," and did not show the driver's face. The court found that the
The OCPO appealed the trial court's judgment, and the Appellate Division panel granted amicus curiae status to the Attorney General and the County Prosecutors Association of New Jersey.
The majority of the Appellate Division panel affirmed the trial court's judgment. Paff,
The majority of the panel also affirmed the trial court's determination as to N.J.S.A. 47:1A-3(a)'s "investigations in progress" exemption.
Finally, based on its in camera review of the recordings and its consideration of the factors that this Court identified in Doe v. Poritz,
One member of the panel dissented from the majority's holding regarding N.J.S.A. 47:1A-1.1's exemption for criminal investigatory records.
The OCPO appealed as of right with respect to the issue raised in the dissent.
II.
The OCPO contends that the MVR recordings are within OPRA's exemption for criminal investigatory records. It argues that when the Legislature replaced the Right to Know Law (RTKL), L. 1963, c. 73, with OPRA, L. 2001, c. 404, it intended to preserve the narrow definition of "required by law" that applied under the RTKL. According to the OCPO, the MVR recordings were not "required by law" because the General Order at issue here is not analogous to the Attorney General Directive mandating Use of Force Reports that we reviewed in North Jersey Media Group, Inc. v. Township of Lyndhurst,
The OCPO also argues that the MVR recordings are within the exemption set forth in N.J.S.A. 47:1A-3 for records of an investigation in progress because they pertain to criminal and internal affairs investigations, and their disclosure would be inimical to the public interest. Finally, the OCPO contends that disclosure of the recordings would violate the driver's reasonable expectation of privacy recognized in N.J.S.A. 47:1A-1.
Plaintiff counters that the OCPO failed to demonstrate that the MVR recordings fall within the criminal investigatory records exemption. He notes that in Lyndhurst, we rejected the definition of "required by law" that had been set forth in the RTKL. Plaintiff contends that the General Order is analogous to the Attorney General Directive addressed in Lyndhurst for purposes of OPRA. He urges, further, that we consider only an investigator's work product to "pertain" to a criminal investigation, as that term is used in N.J.S.A. 47:1A-1.1.
Plaintiff asserts that the MVR recordings are not within N.J.S.A. 47:1A-3's exemption for records of an investigation in progress because they were created before any investigation began and the public has a compelling interest in disclosure. He contends that there is no showing in this case that disclosure of the MVR recordings would intrude on the driver's reasonable expectation of privacy, or that any privacy interest outweighs the public interest in the recordings.
Amici curiae the Attorney General, the County Prosecutors Association of New Jersey, and the New Jersey State Association of Chiefs of Police assert that the MVR recordings are exempt from disclosure as criminal investigatory records because they are not required by law to be made, maintained, or kept, and they pertain to a criminal investigation. They argue that the recordings should be withheld from disclosure to protect the driver's reasonable expectation of privacy. Amicus curiae New Jersey Crime Victims' Law Center contends that a crime victim's privacy interest
Amicus curiae American Civil Liberties Union of New Jersey argues that MVR
Amici curiae the Latino Leadership Alliance of New Jersey, Garden State Equality, People's Organization for Progress, and the New Jersey Chapter of the Society of Professional Journalists assert that the criminal investigatory exemption does not apply to this appeal. Amici contend that records created pursuant to a police chief's directive are "required by law" under N.J.S.A. 47:1A-1.1 and that the MVR recordings did not pertain to any investigation for purposes of OPRA's exemptions for criminal investigatory records and records of an investigation in progress. They argue that redaction of a record prior to production under OPRA adequately protects the privacy interest of a crime victim.
III.
The Legislature enacted OPRA "to promote transparency in the operation of government." Carter v. Doe (In re N.J. Firemen's Ass'n Obligation ),
This appeal requires that we interpret three of OPRA's exemptions: the exclusion of "criminal investigatory records" from N.J.S.A. 47:1A-1.1's definition of "government records"; the exemption for records pertaining to an "investigation in progress," N.J.S.A. 47:1A-3 ; and the statute's privacy clause, N.J.S.A. 47:1A-1. In our construction of those provisions, our objective "is to determine and carry out the Legislature's intent." Sussex Commons,
A.
We first consider the criminal investigatory records exemption set forth in N.J.S.A. 47:1A-1.1.
In OPRA, the Legislature expansively defined the term "[g]overnment record[s]" to encompass any record "made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof," or any record "that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof." N.J.S.A. 47:1A-1.1.
"[C]riminal investigatory records" are among the several categories of records
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. Lyndhurst,
1.
In Lyndhurst, decided while this appeal was pending, we rejected the narrow construction of OPRA's definition of a public record adopted by the Appellate Division in that appeal as inconsonant with OPRA's more expansive reach.
In accordance with that principle, we applied the "not required by law" prong of the N.J.S.A. 47:1A-1.1 standard to two categories of records relating to a police shooting: Use of Force Reports (UFRs) and MVR recordings of the incident.
The contested UFRs were prepared in accordance with a Use of Force Policy that was promulgated by the Attorney General and governed law enforcement across the State.
We reached the opposite conclusion with respect to the MVR recordings at issue in the Lyndhurst appeal. Id. at 567-69,
We rejected the plaintiff's argument in Lyndhurst that the MVR recordings in that case were "required by law" because they were retained in accordance with retention schedules generated in compliance with the Destruction of Public Records Law, N.J.S.A. 47:3-15 to -32.
In short, we found no evidence in the record in Lyndhurst that the MVR recordings in that case were "required by law to be made, maintained or kept on file" in accordance with a directive carrying the force of law.
Guided by the plain language of N.J.S.A. 47:1A-1.1 and the principles set forth in Lyndhurst, we apply the first prong of the test for criminal investigatory records to the MVR recordings in this case.
We find significant distinctions between the Attorney General's Use of Force Policy -- deemed in Lyndhurst to carry the force of law for police entities -- 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.
We are unpersuaded by our dissenting colleagues' invocation of the 1981 amendment to N.J.S.A. 40A:14-118 as evidence that the Legislature intended to enable municipal police chiefs to promulgate orders with the "force of law." Post at 32-33,
Second, we agree with the dissenting Appellate Division judge that the majority's construction of the criminal investigatory records exemption would exclude all but a few records from that provision. Paff,
Such an interpretation of N.J.S.A. 47:1A-1.1 would effectively write the criminal investigatory records exemption out of OPRA, contrary to our rules of statutory construction. See Carter,
Here, the MVR recordings were made and retained in accordance with a local police chief's order to his subordinates, not 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 for OPRA's criminal investigatory records exemption.
2.
In Lyndhurst, we held that the MVR recordings in dispute met the second prong of the test for OPRA's criminal investigatory records exemption because they "pertain[ ] to any criminal investigation."
Our holding in Lyndhurst governs our application of N.J.S.A. 47:1A-1.1's requirement that the disputed record "pertain[ ] to any criminal investigation" in this appeal. See
Accordingly, the OCPO has satisfied the second prong of OPRA's criminal investigatory records exemption. N.J.S.A. 47:1A-1.1. We hold that that exemption warrants the OCPO's decision to withhold the MVR recordings from disclosure under OPRA, and
B.
We next consider OPRA's "investigations in progress" exemption, prescribed by N.J.S.A. 47:1A-3(a).
That exemption provides in relevant part that
where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in [OPRA] may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced.
[ N.J.S.A. 47:1A-3(a).]
As we observed in Lyndhurst, in order to invoke that exemption, a public agency must demonstrate that "(1) the requested
The OCPO has met N.J.S.A. 47:1A-3(a)'s first requirement: at the moment that the MVR cameras were activated in this case, the recordings pertained to the police investigation of the driver's alleged eluding of officers. As the incident progressed, portions of those recordings also pertained to the police investigation of the driver's alleged offense of resisting arrest, and the police and internal affairs investigation of the Tuckerton police officer's alleged official misconduct and aggravated assault offenses. The
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." See Courier News v. Hunterdon Cty. Prosecutor's Office,
In Lyndhurst, we considered whether disclosure of the MVR recordings of a police shooting would be "inimical to the public interest" for purposes of N.J.S.A. 47:1A-3(a).
Here, the OCPO has identified no threat to officer safety, so the first component of the test weighs in favor of disclosure. Its concerns about the impact of a disclosure on the reliability of the investigations at issue are not compelling. As we noted in Lyndhurst, when addressing a police shooting, a court should consider "whether investigators have interviewed the available, principal
Finally, there is a strong public interest in the interaction of police officers and the driver, and the setting of this case. As we observed in Lyndhurst, "non-disclosure of dash-cam videos can undermine confidence
Accordingly, we agree 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. N.J.S.A. 47:1A-3(a).
C.
Finally, we apply OPRA's privacy clause, which 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 our inquiry, we consider the fact that in this case, the driver formally objected to disclosure based on unspecified privacy concerns.
In Burnett, we applied the privacy clause to bar an OPRA request for "eight million pages of land title records of all types, extending over a period of twenty-two years, which contain names, addresses, social security numbers, and signatures of countless
Relying on our decision in Doe,
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
[ Burnett,, 198 N.J. at 427(quoting Doe, 968 A.2d 1151 , 142 N.J. at 88).] 662 A.2d 367
In the "unusual circumstances" of Burnett, we found that OPRA's privacy clause warranted disclosure only after the redaction of social security numbers from the records, with the cost of such redaction imposed on the requestor. Id. at 415, 437-40,
We reach a different conclusion in the setting of this appeal. The MVR recordings depicted a driver's arrest in a public place. The trial court, which conducted an in camera review of the recordings, stated that the driver's face is not shown in the recordings, and the Appellate Division panel agreed that the recordings disclosed no private information.
Moreover, when the driver objected to disclosure of the recordings, she identified no specific privacy concerns. Indeed, the driver's counsel's letter disclosed that she had filed a civil suit against the Borough of Tuckerton arising from her interaction with the Tuckerton police officer and the police dog.
We concur with the determinations of the trial court and Appellate Division panel that 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 under N.J.S.A. 47:1A-1. For example, if a sexual assault or similar crime were recorded by MVR, the victim would have a compelling objection to the disclosure of that recording, even in redacted form. In other circumstances, the blurring of a victim's face or other methods of redaction prior to disclosure of an MVR recording may resolve a privacy concern.
In making these sensitive determinations, courts should give serious consideration to the objections of individuals whose privacy interests are implicated. We remind 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.
IV.
By virtue of its conclusion that the MVR recordings are government records under OPRA and are not within any exemption from the statute, the trial court did not reach the question whether plaintiff has a common-law right of access to the recordings. Nor did the Appellate Division address that issue.
As we noted in Lyndhurst, OPRA does not determine the outcome when a request for disclosure is evaluated under the common law.
To gain access to this broader class of materials, the requestor must make a greater showing than OPRA requires: "(1) the person seeking access must establish an interest in the subject matter of the material; and (2) the citizen's right to access must be balanced against the State's interest in preventing disclosure."
[, 229 N.J. at 578-79(quoting Mason, 163 A.3d 887 , 196 N.J. at 67-68).] 951 A.2d 1017
In Lyndhurst, we identified considerations relevant to a common-law claim of access to the MVR recording of a police shooting and other materials relating to that incident; those considerations were distilled from factors that we identified in Loigman v. Kimmelman,
We concluded in Lyndhurst that the balancing of those considerations, as applied to "investigative reports, witness statements, and other comparably detailed documents," weighed against disclosure.
We remand this matter to the trial court so that the court may address plaintiff's claim of a common-law right of access to the MVR recordings at issue. In that inquiry, the trial court should consider the interests identified by the parties as well as any other relevant factors.
V.
The judgment of the Appellate Division is reversed, and the matter is remanded to the trial court for proceedings consistent with this opinion.
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.
Notes
We summarize the facts based on the record submitted to the trial court.
Although the indictment stated that the officer was charged with "aggravated assault-third degree," the Code provision cited in the indictment sets forth a second-degree offense.
Plaintiff represented to the OCPO that in an identical OPRA and common-law request, he sought video recordings from Barnegat Township. That request is not relevant to this appeal.
Plaintiff also requested any summonses issued against the driver, with the driver's name and address unredacted. Although the OCPO initially stated that it had no records responsive to that request, it later produced a criminal complaint and four motor vehicle summonses issued to the driver as a result of the January 29, 2014 incident.
In its brief, the OCPO clarified that it relied on OPRA's exemption for a "criminal investigatory record," N.J.S.A. 47:1A-1.1, as well as the statute's exemption for records pertaining to an "investigation in progress," N.J.S.A. 47:1A-3(a), and its privacy clause, N.J.S.A. 47:1A-1. The trial court noted that the OCPO had not cited N.J.S.A. 47:1A-1.1 in its initial objection to plaintiff's request, but ruled on the merits of that objection nevertheless.
In Lyndhurst, we acknowledged but did not reach the "intriguing issue" raised in this appeal -- whether a local police chief's order is analogous to a directive from the Attorney General for purposes of OPRA's exemption for criminal investigatory records -- because there was no indication that the officers in Lyndhurst"acted pursuant to any local directives."
N.J.S.A. 40A:14-118 permits a municipality's governing body, by ordinance, to "create and establish ... a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof." For a municipality that chooses to appoint a chief of police, the statute provides that the chief "shall be the head of the police force" and "shall be directly responsible to the appropriate authority for the [police force's] efficiency and routine day to day operations."
Our dissenting colleagues suggest that we should view the General Order to be "required by law," and thus outside the scope of the criminal investigatory records exemption, in order to give greater weight to other exemptions that may apply in a given case. Post at 34-36,
Although we conclude that the MVR recordings are exempt from disclosure under N.J.S.A. 47:1A-1.1, we nonetheless consider the two other OPRA exemptions at issue in this case to offer guidance about the exemptions. See Lyndhurst,
At oral argument, plaintiff's counsel represented that the driver filed an action in the United States District Court as a result of the incident. The record contains no details regarding that action.
Dissenting Opinion
"An informed citizenry is essential to a well-functioning democracy." Paff v. Galloway Township,
In the wake of today's majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police. The majority drastically limits the public's right to access video recordings made by police officers when they interact or have confrontations with
I.
A.
In this case, a Barnegat Township police vehicle's mobile video recorder (MVR) filmed an officer setting a police dog on a woman pulled from her car after she committed several motor vehicle infractions and eluded the police. No public safety justification warranted the officer allowing the dog to attack and injure the driver. The video recording clearly established what occurred, and its release might have quelled rumors or false reports. Importantly, at this point, the release of the video would not undermine any ongoing police investigation.
Plaintiff John Paff sought access to the video recording by filing an OPRA request with the Ocean County Prosecutor's Office. The Prosecutor's Office denied Paff access, citing as one of its reasons for nondisclosure
Under OPRA, government records, which include video recordings, must generally be made available for examination by our citizens, and any limitation on the right to disclosure must "be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. There are exceptions, however, to the rule of general disclosure. The one at issue here is the criminal investigatory records exception. A law enforcement agency does not have to disclose "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." N.J.S.A. 47:1A-1.1 (emphasis added).
That the Chief's command has the force of law is clear from the powers delegated to him by the Legislature. N.J.S.A. 40A:14-118 provides that the chief of police "shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof." The chief of police has the duty to "[a]dminister and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers"; "exercise, and discharge the functions, powers and duties of the force"; and "[p]rescribe the duties and assignments of all subordinates." N.J.S.A. 40A:14-118(a) to (c) (emphasis added). The current version of N.J.S.A. 40A:14-118 is the product of a 1981 legislative amendment, L. 1981, c. 266, § 1, which gave chiefs of police "express statutory authority ... to avoid undue interference by a governing body into the operation of the police force." Falcone v. De Furia,
The Legislature delegated to the Chief of Police the power to issue the General Order to his officers. The failure to abide by that direct order presumably would subject an officer to discipline, perhaps even removal. See N.J.S.A. 40A:14-181 (referencing Police Bureau of the Div. of Criminal Justice, Internal Affairs Policy & Procedures (Nov. 2017) ). Under OPRA's broad right of disclosure, a chief of police's direct order has the force of law, and therefore the video recordings were "required by law" in this case, meaning that
B.
The majority, however, concludes that because the Chief of Police's General Order is not an ordinance or statute, or even an Attorney General directive, the video recording is not a record "required by law" to be maintained and therefore not subject to OPRA's disclosure requirement. Ante at 20-21,
In Lyndhurst, this Court recognized that the Attorney General, as the State's chief law enforcement officer, "has the authority to adopt guidelines, directives, and policies that bind police departments throughout the State."
Lyndhurst supports the disclosure of the video recording in this case because 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. Both a chief of police and the Attorney General act under authority delegated by the Legislature.
The majority's claim that there are "significant distinctions between the Attorney General's Use of Force Policy ... and the Barnegat Township Police Chief's General Order" does not hold water. See ante at 20,
The arbitrary distinction created by the majority 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. Sunlight is the greatest disinfectant when the government acts in dark corners. See Buckley v. Valeo,
In Lyndhurst, this Court generally observed:
Ready access to government records lies at the heart of OPRA. And in the case of a police shooting, non-disclosure of dash-cam videos can undermine confidence in law enforcement and the work that officers routinely perform. It can also fuel theperception that information is being concealed -- a concern that is enhanced when law enforcement officials occasionally reveal footage that exculpates officers.
[229 N.J. at 576-77 ,.] 163 A.3d 887
The concerns expressed by the Court in favor of disclosure of a dash-cam video in a police shooting case apply with equal force here where a police dog was allowed to attack a driver stopped for motor vehicle infractions and eluding. The majority's decision will make exceedingly more difficult the ability of citizens to gain access to police video recordings and reports. That is not in keeping with a statute that calls itself the Open Public Records Act.
C.
The majority's decision will have far-ranging consequences. For the most part, this decision will render superfluous the ongoing investigation exception under OPRA. See N.J.S.A. 47:1A-3. When records, such as the video recording in this case, are exempt under the criminal investigatory records exception, the analysis ends. The Legislature evidently intended that the ongoing investigation exception and other exceptions would narrow the scope of criminal records subject to disclosure. Thus, if the video recording in this case -- and other records -- were not subject to the criminal investigatory records exception, its disclosure would still be contingent on the analyses under a number of other potential OPRA exceptions, such as the ongoing investigation exception, N.J.S.A. 47:1A-3 ; the victim's personal identifying information exception, N.J.S.A. 47:1A-2.2 ; the citizen's reasonable expectation of privacy exception, N.J.S.A. 47:1A-1 ; the emergency or security information exception, N.J.S.A. 47:1A-1.1 ; the security measures and surveillance techniques exception, ibid.; and executive orders of the Governor, N.J.S.A. 47:1A-1. Those additional safeguards refute the majority's suggestion that the sky would fall if a chief of police's direct order were to have the force of law.
With the majority's expansive reading of the criminal investigatory records exception, the general rule effectively will be nondisclosure. In that way, the majority has turned OPRA on its head.
The majority still gives Paff and the public a pathway to disclosure under the common law. But that will be a difficult and burdensome path fraught with litigation and increased costs. Because of the complicated formula under the common law right to access, which requires the weighing of a number of competing factors, custodians will be loath to disclose records voluntarily. The responsibility will fall to judges to engage in factfinding and balance the factors for and against release. The common law is not an adequate substitute for OPRA because the Legislature intended a streamlined and simplified methodology for records custodians to make decisions. See Pub. Hearing Before S. Judiciary Comm., S. 161, 351, 573, 866 80 (Mar. 9, 2000) ("[I]f [OPRA] is passed, [requestors are] going to get the records a lot more quickly ... and a lot less expensively, than having to litigate under the common law.").
II.
In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today's decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.