Paff v. Ocean County Prosecutors Office
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Supreme Court of New Jersey?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Supreme Court of New Jersey. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
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 was 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. 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. 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. The New Jersey Supreme Court reversed 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 constituted criminal investigatory records under that provision, and that they were therefore not subject to disclosure under OPRA. The Supreme Court remanded the matter to the trial court for consideration of plaintiff’s claim of a common-law right of access to the MVR recordings.
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).
1
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
2
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
3
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.
4
SUPREME COURT OF NEW JERSEY
A-
17 September Term 2016
078040
JOHN PAFF,
Plaintiff-Respondent,
v.
OCEAN COUNTY PROSECUTOR’S
OFFICE,
Defendant-Appellant.
Argued February 27, 2018 – Decided August 13, 2018
On appeal from and certification to the
Superior Court, Appellate Division, whose
opinion is reported at
446 N.J. Super. 163
(App. Div. 2016).
Samuel J. Marzarella, Chief Appellate
Attorney, argued the cause for appellant
(Joseph D. Coronato, Ocean County
Prosecutor, attorney; Samuel J. Marzarella,
of counsel and on the briefs, and Nicholas
D. Norcia, Assistant Prosecutor, on the
briefs).
Richard M. Gutman argued the cause for
respondent (Richard M. Gutman, on the
briefs).
Raymond R. Chance, III, Assistant Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Raymond
R. Chance, III, of counsel, and Daniel M.
Vannella, Deputy Attorney General, on the
brief).
Ian C. Kennedy, Assistant Prosecutor, argued
the cause for amicus curiae County
Prosecutors Association of New Jersey
1
(Richard T. Burke, President, attorney; Ian
C. Kennedy and Annmarie Cozzi, Senior
Assistant Prosecutor, of counsel and on the
brief).
Vito A. Gagliardi, Jr., argued the cause for
amicus curiae New Jersey State Association
of Chiefs of Police (Porzio, Bromberg &
Newman, attorneys; Vito A. Gagliardi, Jr.,
of counsel and on the brief, and David L.
Disler, on the brief).
Richard D. Pompelio argued the cause for
amicus curiae New Jersey Crime Victims’ Law
Center (New Jersey Crime Victims’ Law
Center, attorneys; Richard D. Pompelio, of
counsel and on the brief).
CJ Griffin argued the cause for amici curiae
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
(Pashman Stein Walder Hayden, attorneys; CJ
Griffin, of counsel and on the brief).
Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
attorney; Alexander Shalom, Edward L.
Barocas, Jeanne M. LoCicero, and Iris
Bromberg on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we apply 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. The MVR recordings at
issue documented an incident in which police officers pursued
and arrested a driver who had allegedly eluded an officer
2
attempting a traffic stop. One officer’s decision to deploy a
police dog during the arrest led to internal affairs
investigations and criminal charges against the officer.
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 “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.
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. Paff v. Ocean
Cty. Prosecutor’s Office,
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 on that issue, and
we granted its petition for certification on the applicability
3
of OPRA’s “investigations in progress” exemption,
N.J.S.A.
47:1A-3(a), and the statute’s privacy clause,
N.J.S.A. 47:1A-1.
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 Order No. 08-02 (General
Order), entitled “Mobile Video Recording Equipment.”1 The
General Order was issued under the authority of the Chief of the
1 We summarize the facts based on the record submitted to the
trial court.
4
Barnegat Township Police Department, and applied only to that
department.
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
5
“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 motorist. The driver disregarded the officer and continued to
drive, prompting a police chase. As the driver approached
Barnegat Township, officers in that Township were alerted and
two Barnegat Township patrol vehicles joined the Tuckerton
officer’s pursuit of the driver. The chase ended when the
driver stopped her vehicle in the parking lot of a Barnegat
Township municipal building. As officers at the scene removed
the driver from her vehicle, a Tuckerton Borough police officer
and his police dog arrived and participated in the driver’s
arrest. According to the OCPO, the officer unlawfully caused
the police dog to injure the driver.
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.
6
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);2 fourth-degree
false swearing,
N.J.S.A. 2C:28-2(a); third-degree tampering with
public records or information,
N.J.S.A. 2C:28-7(a)(1); and
second-degree hindering apprehension or prosecution,
N.J.S.A.
2C:29-3(b). The driver was charged with eluding,
N.J.S.A.
2C:29-2(b), and resisting arrest,
N.J.S.A. 2C:29-2(a)(3), and
was issued four summonses for motor vehicle violations.
Accordingly, the driver was both a victim of the Tuckerton
officer’s alleged criminal offenses and the defendant in
criminal and motor vehicle violation proceedings arising from
the same incident.
3.
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
2 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.
7
or under the control of Barnegat Township.”3 Pursuant to OPRA
and the common-law right of access, plaintiff requested “a copy
of the video of this incident.”4
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 audio or video tapes at this time, because of privacy and
other related issues.”
3 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.
4 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.
8
B.
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. In opposition to the order
to show cause, the OCPO presented certifications by two officers
setting forth the General Order governing MVR recordings, the
driver’s objection to production of the recordings, and the
criminal and internal affairs investigations that arose from the
January 29, 2014 incident.
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.5
5 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.
9
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.” Ibid.
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.
Accordingly, the trial court held that the OCPO had
improperly withheld the MVR recordings. However, pending
supplemental briefing as to the applicability of the criminal
investigatory exemption, it stayed its determination for thirty
days and ordered the OCPO to submit the MVR recordings for in
camera review to allow the court to further assess the impact of
the release of the recordings on the driver’s privacy interest.
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
10
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
recordings were not “so horrific or chilling” as to warrant
nondisclosure. The court therefore found that plaintiff had
proven his claim under OPRA, and awarded attorneys’ fees to
plaintiff. It did not address plaintiff’s common-law claim.
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,
446 N.J. Super. at 177. The
majority concurred with the trial court that the MVR recordings
11
constitute government records and were not exempt as records
pertaining to a criminal investigation under
N.J.S.A. 47:1A-1.1.
Id. at 184-85. The majority construed the phrase “required by
law” in that provision to encompass any record that is required
by a local law enforcement order, as long as the order is issued
pursuant to a delegation of power under
N.J.S.A. 40A:14-118.
Ibid. That statute authorizes a municipality to create and
establish a police force, provide for its maintenance,
regulation and control, and adopt an ordinance appointing a
chief of police. The panel also held that because the MVR
recordings preceded the commencement of any criminal
investigation, they did not “pertain” to any such investigation,
and that the OCPO therefore failed to meet its burden under the
criminal investigatory exemption’s second prong. Id. at 188.
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. Id. at 188-90. It held that the exemption
did not apply to the MVR recordings because the recordings were
made prior to the investigations and the OCPO did not
demonstrate that disclosure would be inimical to the public
interest. Ibid.
Finally, based on its in camera review of the recordings
and its consideration of the factors that this Court identified
in Doe v. Poritz,
142 N.J. 1, 88 (1995), the panel’s majority
12
found that the driver’s privacy interest did not outweigh the
public’s interest in disclosure under OPRA’s privacy clause,
N.J.S.A. 47:1A-1.1. Paff,
446 N.J. Super. at 192-93.
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. Id. at 194 (Gilson, J., dissenting).
The dissenting judge focused on the first of that provision’s
two prongs, under which a record must not be “required by law to
be made, maintained, or kept on file” in order to qualify for
the exemption. Id. at 195-201 (quoting
N.J.S.A. 47:1A-1.1).
The dissenting judge rejected the majority’s conclusion that a
record is “required by law” under
N.J.S.A. 47:1A-1.1 because it
was created pursuant to the order of a police chief. Id. at
199-201. He observed that “[i]t 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
instruction calling for that document to be prepared.” Id. at
199. The dissenting judge reasoned that the majority’s broad
construction of the “required by law” prong in
N.J.S.A. 47:1A-
1.1 would exclude virtually any document generated in a police
department from OPRA’s criminal investigatory records exception.
Ibid. He further concluded that the MVR recordings pertained to
a criminal investigation, as
N.J.S.A. 47:1A-1.1 mandates in
order for the exemption to apply. Id. at 201-03.
13
The OCPO appealed as of right with respect to the issue
raised in the dissent. R. 2:2-1(a). We granted the OCPO’s
petition for certification regarding the remaining issues
addressed by the Appellate Division panel.
228 N.J. 403 (2016).
We also granted amicus curiae status to the New Jersey State
Association of Chiefs of Police, the New Jersey Crime Victims’
Law Center, the American Civil Liberties Union of New Jersey,
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.
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,
229 N.J. 541, 565-66 (2017). The OCPO
asserts that the MVR recordings satisfy the second part of the
definition of “criminal investigatory records” as well because
they pertain to the early stage of a criminal investigation, as
14
did the recordings of a police shooting in Lyndhurst,
229 N.J.
at 569.
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
15
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 and right to be treated with fairness,
compassion, and respect outweigh the public interest in
disclosure.
Amicus curiae American Civil Liberties Union of New Jersey
argues that MVR recordings are made to protect law enforcement
and to serve as instructional material, not to investigate
criminal activity. Amicus asserts that police conduct and
criminal activity in a public setting do not implicate privacy
interests, and that when the factors set forth in Doe,
142 N.J.
at 88, are applied to this case, the public’s interest in
disclosure outweighs any privacy interest.
16
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),
230 N.J. 258, 276 (2017) (quoting
Sussex Commons Assocs., LLC v. Rutgers,
210 N.J. 531, 541
(2012)). The statute serves “the bedrock principle that our
government works best when its activities are well-known to the
public it serves.” Burnett v. County of Bergen,
198 N.J. 408,
414 (2009). In OPRA, the Legislature declared 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
17
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 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,
210 N.J. at 540-41; accord Carter,
230 N.J. at 274; Gilleran v. Township of Bloomfield,
227 N.J. 159,
171 (2016). “We look first to the plain language of the statute
to try to give meaning to the Legislature’s intent.” Lyndhurst,
229 N.J. at 557. If that language is ambiguous, we “may examine
extrinsic evidence for guidance.” Sussex Commons,
210 N.J. at
541.
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,
18
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 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. Lyndhurst,
229 N.J. at 556.
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
19
as inconsonant with OPRA’s more expansive reach. Id. at 566.
Instead, we construed the criminal investigatory exemption “in
light of the current law’s stated purpose, which favors broad
access, and not prior case law that analyzed the narrower RTKL.”
Ibid.
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. Id. at
564-69.
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. Id. at 565. That
policy mandated that “'[i]n all instances when physical,
mechanical, or deadly force is used [by law enforcement], each
officer who has employed such force shall complete’ a 'Use of
Force Report’ and '[a]ny reports made necessary by the nature of
the underlying incident.’” Ibid. (first and third alterations
in original) (quoting Attorney General, Use of Force Policy 7
(Apr. 1985, rev. June 2000) (Use of Force Policy)).
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, we deemed the Use of Force Policy to be
20
“a clear, pointed statement of policy from the chief law
enforcement official to all officers who have used deadly
force.” Ibid. We viewed the Use of Force Policy to have “the
force of law for police entities.” Ibid. (quoting O’Shea v.
Township of West Milford,
410 N.J. Super. 371, 382 (App. Div.
2009)). We 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.
We reached the opposite conclusion with respect to the MVR
recordings at issue in the Lyndhurst appeal. Id. at 567-69. We
noted that the parties identified no Attorney General directive
addressing such recordings. Id. at 567. Moreover, it was
unclear whether the MVR cameras had recorded the police shooting
automatically, or had been activated by police officers “in an
exercise of discretion or in response to an order at the local
level.” Ibid.6 We thus found no evidence that the police
officers in Lyndhurst were “required by law” to make the MVR
recordings in dispute. Id. at 567-68.
6 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.” Id. at 567-68.
21
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. Id. at 568. We observed that the
criminal investigatory records exemption “would have little
meaning” if records were deemed “required by law” simply because
retention schedules required that they be maintained for a
specific period. Ibid.
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. Ibid. We held that those recordings
were within N.J.S.A. 47:1A-1.1’s criminal investigatory records
exemption to OPRA. Id. at 569.
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
22
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.7 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 our State. See Lyndhurst,
229 N.J. at 565 (noting
Attorney General’s authority under
N.J.S.A. 52:17B-97 to -117);
O’Shea,
410 N.J. Super. at 382-83 (same). We do not consider
the Barnegat Township Police Chief’s General Order to constitute
a “law” as that term is used in
N.J.S.A. 47:1A-1.1.
We are unpersuaded by our dissenting colleagues’
invocation of the 1981 amendment to
N.J.S.A. 40A:14-118 as
7 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.” Ibid. The police chief “shall,
pursuant to policies established by the appropriate authority,”
undertake a range of functions including the administration and
enforcement of “rules and regulations and special emergency
directives for the disposition and discipline of the force and
its officers and personnel.” Id. § 118(a).
23
evidence that the Legislature intended to enable municipal
police chiefs to promulgate orders with the “force of law.”
Post at ___ (slip op. at 4-5). As its plain language confirms,
the Legislature amended the statute to simply “redefine the
relationship between a municipal governing body and the chief of
police.” Falcone v. De Furia,
103 N.J. 219, 221 (1986). As
amended,
N.J.S.A. 40A:14-118 limited the authority of
municipalities to regulate the internal affairs of police
departments, designated properly-appointed chiefs of police as
the heads of police forces, and granted such chiefs the
authority to “[p]rescribe the duties and assignments of all
subordinates and other personnel.”
N.J.S.A. 40A:14-118(c). The
amended statute thus “sought to avoid undue interference by a
governing body into the operation of the police force.”
Falcone,
103 N.J. at 221. It does nothing to invest police
chiefs with the authority to impose binding legal obligations on
their subordinates.
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,
446 N.J. Super. at 199
(Gilson, J., dissenting). 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, any
24
record pertaining to a criminal investigation that was created
in accordance with a directive would be ineligible for N.J.S.A.
47:1A-1.1’s exemption for such records. 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. In short, the vast majority of criminal investigatory
records would fall outside of the exemption for such records.
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,
230 N.J. at 274 (“[L]egislative language must not,
if reasonably avoidable, be found to be inoperative, superfluous
or meaningless.” (alteration in original) (quoting State v.
Regis,
208 N.J. 439, 449 (2011))). We decline to construe the
“required by law” language of
N.J.S.A. 47:1A-1.1 so as to
virtually eliminate the criminal investigatory records exemption
from OPRA.8
8 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 ___ (slip op. at 8-9). They also suggest
that OPRA’s general objective to promote disclosure compels us
to exclude the MVR recordings at issue from that exemption.
Post at (slip op. at 5-6, 10). Both arguments are
unavailing. We base our holding on the plain language of the
exemption, which expresses the Legislature’s intent to exclude
from disclosure records that “pertain[] to any criminal
investigation,” if those records are “not required by law to be
25
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.”
229 N.J. at 569 (alteration in
original) (quoting
N.J.S.A. 47:1A-1.1). We agreed with the
Appellate Division panel in that case that “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.” Id. at 569 (quoting N. Jersey Media Grp.,
Inc. v. Township of Lyndhurst,
441 N.J. Super. 70, 104-05 (App.
Div. 2015)). Observing that the MVR recordings in that case
depicted a series of police actions -- officers’ attempts to
stop and arrest two suspects, their pursuit of a suspect “as he
made, maintained or kept on file.”
N.J.S.A. 47:1A-1.1; see also
Lyndhurst,
229 N.J. at 557 (stating that courts should construe
OPRA exemptions in accordance with their plain language).
26
attempted to elude [officers] in violation of the law,” and
their response to his resistance -- we concluded that the MVR
recordings 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. Ibid.;
cf. O’Shea,
410 N.J. Super. at 385 (noting “the absence of a
factual showing that any of the reports sought in this matter
pertained to an actual criminal investigation or to an existing
related civil enforcement proceeding”).
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
229 N.J. at 569. When the MVR recordings in this matter were
made, they pertained -- at a minimum -- to the investigation of
the driver’s alleged eluding of police. That investigation was
at its inception, but it was clearly underway. 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
Tuckerton Borough police officer.
Accordingly, the OCPO has satisfied the second prong of
OPRA’s criminal investigatory records exemption. N.J.S.A.
27
47:1A-1.1. We hold that that exemption warrants the OCPO’s
decision to withhold the MVR recordings from disclosure under
OPRA, and we reverse the Appellate Division panel’s
determination on that ground.
B.
We next consider OPRA’s “investigations in progress”
exemption, prescribed by
N.J.S.A. 47:1A-3(a).9
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
9 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,
229 N.J. at 570-
78 (addressing application of
N.J.S.A. 47:1A-3 exemption to MVR
recordings notwithstanding determination that recordings were
exempt from disclosure under
N.J.S.A. 47:1A-1.1).
28
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 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 OCPO has also
satisfied the third component of the test; the MVR cameras
recorded the eluding incident as it unfolded, and the recordings
were not publicly available before the investigation began.
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,
358 N.J.
Super. 373, 381-83 (App. Div. 2003) (rejecting agency’s claim
that ongoing investigations exemption applied because release of
9-1-1 tape would make it difficult to empanel jury at trial);
29
Serrano v. South Brunswick Township,
358 N.J. Super. 352, 367
(App. Div. 2003) (same); cf. Asbury Park Press v. Lakewood Twp.
Police Dep’t.,
354 N.J. Super. 146, 161-64 (Law Div. 2002)
(finding that release of 9-1-1 tapes would not be inimical to
public interest under RTKL). That aspect of the test calls for
“a fact-specific analysis of how the statutory standard
applies.” Lyndhurst,
229 N.J. at 576.
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).
229 N.J. at 575-
77. We noted that “officer safety, the reliability of ongoing
investigations, and transparency” are relevant to the question
whether disclosure of a given record is “inimical to the public
interest.” Id. at 576. In that setting, we found that the
release of the MVR recordings posed no threat to officer safety
or the integrity of the ongoing investigation, and that the
public interest in disclosure was compelling. Id. at 576-77.
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 witnesses to the incident
30
-- namely, the witnesses on the scene who saw the shooting and
are willing to speak with law enforcement.”
229 N.J. at 576.
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 that we identified in
Lyndhurst to be relevant to the “inimical to the public
interest” standard 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. As we observed in Lyndhurst, “non-disclosure of
dash-cam videos can undermine confidence in law enforcement and
the work that officers routinely perform” and “fuel the
perception that information is being concealed.” Id. at 576-77.
The final factor identified in Lyndhurst as pertinent to the
question whether disclosure is “inimical to the public interest”
under
N.J.S.A. 47:1A-3(a) thus weighs in plaintiff’s favor.
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.
31
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 citizens of this State.”
198 N.J. at
414. We 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.” Id. at 427.
Relying on our decision in Doe,
142 N.J. at 88, we
identified the following factors to be relevant to that
balancing test:
(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
32
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, 142
N.J. at 88).]
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
33
dog.10 As plaintiff notes, in such a lawsuit, the MVR recordings
of the incident would constitute crucial evidence.
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.
10 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.
34
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.
229 N.J. at 578. The common-law right of access
applies to a more expansive class of records than the category
of government records defined by OPRA; to qualify as a public
record under the common law, “the item must be 'a written
memorial[] . . . made by a public officer, and . . . the officer
[must] be authorized to make it.’” Mason v. City of Hoboken,
196 N.J. 51, 67 (2008) (alterations in original) (quoting Nero
v. Hyland,
76 N.J. 213, 222 (1978)). As we noted in Lyndhurst,
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,
196 N.J.
at 67-68).]
In Lyndhurst, we identified considerations relevant to a
common-law claim of access to the MVR recording of a police
35
shooting and other materials relating to that incident; those
considerations were distilled from factors that we identified in
Loigman v. Kimmelman,
102 N.J. 98, 113 (1986), and from the
“core concerns” arising from
N.J.S.A. 47:1A-3(a). Lyndhurst,
229 N.J. at 579. The considerations identified in Lyndhurst are
(1) the State’s and public’s “interest in thorough and reliable
investigations that are untainted by the early disclosure of
investigative details”; and (2) the plaintiff’s objective to
promote the public good by requesting materials that may “shed
light on the 'possible use of excessive force by police,’” and
may “also reassure the public that the police acted
professionally and lawfully.” Id. at 579 (quoting Lyndhurst,
441 N.J. Super. at 117). In the careful balancing “that each
case -- and this sensitive area -- require, we look in
particular at the level of detail contained in the materials
requested.” Id. at 580.
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. Id. at 580. We determined, however, that
the balancing test favored disclosure in the case of the MVR
recordings of the police shooting that were disputed in that
appeal. Ibid. We held that the recordings should be disclosed
under the common law. Ibid.
36
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.
37
SUPREME COURT OF NEW JERSEY
A-
17 September Term 2016
078040
JOHN PAFF,
Plaintiff-Respondent,
v.
OCEAN COUNTY PROSECUTOR’S
OFFICE,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
“An informed citizenry is essential to a well-functioning
democracy.” Paff v. Galloway Township,
229 N.J. 340, 357
(2017). To that end, the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13, “is designed to promote transparency in
the operation of government,” Sussex Commons Assocs., LLC v.
Rutgers,
210 N.J. 531, 541 (2012), because “our government works
best when its activities are well-known to the public it
serves,” Burnett v. County of Bergen,
198 N.J. 408, 414 (2009).
Although today’s majority opinion gives a nod to those general
principles, it does not follow them.
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
1
made by police officers when they interact or have
confrontations with members of the public. This closing of what
ordinarily should be an open door of access to records violates
both specific statutory provisions and the broad principles of
OPRA, and is inconsistent with our own jurisprudence. For those
reasons, I respectfully dissent.
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 the criminal investigatory
records exception to OPRA.
Under OPRA, government records, which include video
recordings, must generally be made available for examination by
2
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).
Here, the Barnegat Township Chief of Police issued a
General Order to members of the police department to video-
record certain interactions with the public. The General Order
states that “[i]t is the policy of [the Barnegat Township Police
Department] to use mobile video recorders in order to protect
the members of this agency and to record information related to
motorist contacts and other patrol related activities.” The
Chief’s General Order is a command to all officers in the police
department explicitly directing when and how to video-record
encounters with the public. No police officer under the Chief’s
command has the discretion to disobey that Order. In other
words, that Order has the force of law. Because the video
recording was “required by law to be made,” it therefore does
3
not constitute an exempt record under OPRA’s criminal
investigatory records exception.
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,
103 N.J.
219, 221-22 (1986). Before the amendment, a chief of police
derived his power from “ordinances, resolutions, rules and
regulations adopted and promulgated by the governing body in the
exercise of its broad statutory responsibility.” Grasso v.
Borough Council of Glassboro,
205 N.J. Super. 18, 29 (App. Div.
1985) (quoting Gauntt v. City of Bridgeton,
194 N.J. Super. 468,
4
480-81 (App. Div. 1984)); cf. Sponsor’s Statement to S. 1243 (L.
1981, c. 266, § 1) (“This bill clarifies responsibility for the
conduct of municipal police activities by providing for the
duties and responsibilities of chiefs of police.”).
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 the criminal
investigatory records exception does not apply.
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 ___ (slip op.
at 23). To reach that conclusion, however, the majority
abandons OPRA’s declaration that 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, and eviscerates our holding in North
5
Jersey Media Group, Inc. v. Township of Lyndhurst,
229 N.J. 541
(2017).
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.” Id. at 565.
With that in mind, we held that the Attorney General’s policy
requiring officers to complete a Use of Force Report had “the
force of law for police entities.” Ibid. (quoting O’Shea v.
Township of West Milford,
410 N.J. Super. 371, 382 (App. Div.
2009)). Because the Attorney General’s policy had “the force of
law,” we determined that the “Use of Force Reports are 'required
by law to be made’” and therefore “cannot be exempt from
disclosure under OPRA’s criminal investigatory records
exemption.” Ibid. (quoting
N.J.S.A. 47:1A-1.1).
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
6
. . . and the Barnegat Township Police Chief’s General Order”
does not hold water. See ante at ___ (slip op. at 22). The
majority states that “no statute gives a General Order
promulgated by the Barnegat Township Police Chief the force of
law,” citing
N.J.S.A. 40A:14-118. Ante at ___ (slip op. at 22-
23). Although I do not dispute that the Legislature has given
the Attorney General the power to “bind police departments
throughout the State” to follow statewide directives, Lyndhurst,
229 N.J. at 565, it is also true that the Legislature has
delegated to chiefs of police the power to issue general
directives that are binding on police officers under
N.J.S.A.
40A:14-118.
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,
424 U.S. 1, 67 (1976)
(quoting Louis Brandeis, What Publicity Can Do, in Other
People’s Money and How the Bankers Use It 62 (National Home
Library Foundation ed. 1933)).
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
7
can undermine confidence in law enforcement
and the work that officers routinely perform.
It can also fuel the perception 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.]
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
8
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. Contrary to the majority’s approach,
exceptions to OPRA should be construed narrowly in light of
OPRA’s declaration that “any limitations on the right of access
. . . shall be construed in favor of the public’s right of
access.”
N.J.S.A. 47:1A-1.
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
9
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.
The public -- particularly marginalized communities -- will
have greater trust in the police when law enforcement activities
are transparent. Because the majority’s decision does not
advance that purpose, I respectfully dissent.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
