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NJ Open Government Notes

Three-judge panel split 2-1 on whether police dash-cam video is available under OPRA.

On August 28, 2017, two judges out a three-judge Appellate Division panel issued a non-precedential opinion granting a Lakewood resident access to a police dash-cam video of an August 31, 2013 traffic stop that resulted in the arrest and indictment of a Lakewood police officer.  One judge, however, filed a dissenting opinion that argued that the recording was a “criminal investigatory record” and thus exempt from disclosure.

The case is similar to Paff v. Ocean County Prosecutor’s Office.  There, as in today’s case, the decision turned on whether a local police directive requiring the video to be recorded satisfied the “not required by law” prong of the criminal investigatory record exemption.  Under OPRA, a record cannot be exempt as a criminal investigatory record if it is required by law to be made.  Judges Ellen Koblitz and Thomas W. Sumners ruled that a Lakewood police directive that required dash-cam filming off all traffic stops was a “law” that removed the videos from the criminal investigatory record exemption.  Judge Susan L. Reisner disagreed and wrote a dissenting opinion.

The issue of whether a local police directive satisfies the “law” requirement is under consideration of the New Jersey Supreme Court which is presently reviewing the Paff matter.

Beside the dash-cam issue, all three judges agreed that the sufficiency of the information contained in the prosecutor’s press release regarding the Lakewood officer’s arrest should be remanded to the trial court.  All three judges also agreed that the trial court should examine whether police reports of the incident should have been released, whether the video is disclosable under the common law right of access and whether attorney fees issued to the plaintiff in the case should be recalculated.

Walter M. Luers of Clinton is the plaintiff’s attorney.

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project