In what we believe to be a matter of first impression, on August 24, 2018, in Lewis v. County of Burlington, Judge Jacobson in Mercer County ruled that OPRA’s criminal investigatory records exception does not apply to body-worn camera recordings.

By way of background, OPRA exempts “criminal investigatory records” from public access, but OPRA defines a criminal investigatory record as any record that 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.  Thus, if the police are required by law or Attorney General guideline or directive to create or maintain a record, it is not a “criminal investigatory record” within the meaning of the exception.

In two recent high profile cases, North Jersey Media Group v. Lyndhurst and Paff v. Ocean County Prosecutor’s Office, the New Jersey Supreme Court has held that police dash-cam recordings that relate to a criminal investigation and criminal investigatory reports meet the definition of “criminal investigatory records” because no law requires that police create those records or maintain them.

In contrast, Use of Force reports are not “criminal investigatory records” because the Office of the Attorney General has promulgated a guidelines that require such reports to be created and maintained, and has even promulgated a sample form for law enforcement agencies to use.

Returning to the Lewis case, the Plaintiff (represented by us) brought to the attention of the Court a similar directive that exists for body-worn cameras.  This directive, whose full name is “Attorney General Law Enforcement Directive 2015-01,” sets minimum standards for the use of body-worn cameras, including the circumstances under which they must be activated.  In the Lewis case, the Trial Court held that the directive was sufficiently comprehensive that it met the “required by law” test.

This does not mean that body-worn camera recordings that relate to a criminal investigation will always be public.  Other exceptions may apply to such recordings, such as reasonable expectation of privacy or security concerns.  However, this case is important because it held that the criminal investigation exception does not apply.

This case also creates an interesting dichotomy: crime scene dash-cam videos are exempt, while body-cam videos are potentially public.  Such a dichotomy might be vexing to law enforcement agencies, and understandably so.  Nonetheless, the result is one that is entirely consistent with current Supreme Court precedents.  Ultimately, it may be up to the Legislature to craft a solution that adequately protects everyone’s interests.

Finally, dash-cam videos and body-worn camera recordings that do not relate to a criminal investigation should remain available to the public through OPRA.  The cases discussed in this post are circumstances where the recordings were part of a criminal investigation.

If you have any questions regarding the subject of this post or any other matter, please contact us for a free consultation at 908-894-5656.

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