The two-judge majority, consisting of Jose L. Fuentes and John C. Kennedy, found that the recording was not a “Criminal Investigatory Record” because the Ocean County Prosecutor’s Office (OCPO), the defendant in the case, could not prove both elements of that exemption: a) that the recording was “not required by law to be made” and b) that it “pertain[ed] to any criminal investigation.” Fuentes and Kennedy agreed with the trial judge, Ocean County Superior Court Assignment Judge Vincent Grasso, that a general order issued by the Barnegat Police Chief requiring the dash-cam recordings to be made qualified as “law” within the meaning of the exemption. Since the recording was required by law to be made, the two-judge majority held that OPRA’s Criminal Investigatory Record exemption did not apply. The majority also rejected the OCPO’s reliance on the Investigation in Progress exemption as well as seven other arguments made.
In his dissent, Judge Robert J. Gilson wrote that the the Barnegat Police Chief’s general order does not have the stature of a “law” within the meaning of OPRA’s Criminal Investigatory Record exception. He also found sufficient proof in the record that the recording pertained to a criminal investigation.
The majority’s ruling regarding the scope of the Criminal Investigatory Record exception contrasts with that made by another Appellate Division panel in North Jersey Media Group, Inc. v. Township of Lyndhurst. Under court rules, Gilson’s dissent gives the OCPO an automatic right to appeal to the New Jersey Supreme Court. The high court, which has also agreed to hear an appeal of Lyndhurst case, will likely settle the question in the next several months. (Update: On July 11, 2017, the Appellate Division’s decision in North Jersey Media Group, Inc. v. Township of Lyndhurst, 441 N.J. Super. 70 (App. Div. 2015) was mostly reversed by the Supreme Court. The Supreme Court’s decision is here. A summary of the decision is here.)