Not every New Jersey court decision is published in the law books. The vast majority of them are considered “unpublished opinions” and “shall not constitute precedent or be binding upon any court.” See Court Rule 1:36-3. Even though they’re not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011 in the case of Charles W. Cain, Jr. v. Township of Hamilton. That decision, which is five pages long, is on-line here.  The Burlington County case that is referred to in Judge Higbee’s decision is covered by my blog entry here.

The Plaintiff, Charles W. Cain, Jr., was a local, elected official who had been arrested for driving under the influence (DWI) by Hamilton Township (Atlantic County) police. Cain’s field sobriety test was captured on the police car’s dashboard mounted camera and the daily newspaper–the Press of Atlantic City–submitted an Open Public Records Act (OPRA) request for the video recording.

When Cain learned that the Press has asked for the recording, he sued Hamilton Township in an attempt to block the recording’s release. He argued that the recording was a “criminal investigatory record” and exempt from disclosure. Judge Higbee, however, found that since DWI is not a “crime,” the “criminal investigatory record” exception did not apply.

Rather, Judge Higbee found that the only relevant OPRA exception was Hamilton Township’s obligation to safeguard personal information to which a citizen has a reasonable expectation of privacy. This privacy exception required the court to balance the public’s need for disclosure against Cain’s need for privacy.

Judge Higbee found that since Cain was an elected official, Township voters have a legitimate interest in his conduct and his compliance with traffic laws. She found that the public’s interest in disclosure exceeded Cain’s interest in privacy and thus released the recording.

Cain appealed the ruling but, according to media reports, the Appellate Division declined to reverse it.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]