In the wake of the Supreme Court’s decision in North Jersey Media Group v. Lyndhurst, which held that records that relate to a criminal investigation and are not required to be made, maintained or kept on file by law are not public records, OPRA requestors and practitioners have been working to define and limit the outer contours of that exception. In a prior blog post by us, we wrote about a trial court decision in which the trial court held that body cams are not exempt under the criminal investigatory records exception because there is an Attorney General’s Office directive that directs State and local police officers regarding how they are supposed to operate body worn cameras.
On January 9, 2020, the Appellate Division released an unpublished decision in which the Court agreed with that prior trial court opinion. (An unpublished opinion is binding only on the parties to the case, and cannot be cited by any court (see Rule 1:36-3) but can be cited to a court).
In Richard Rivera, LLC v. Township of Bloomfield, the Court reversed the trial court and held that body worn cameras were public records. The body cams recorded a fatal police shooting of a knife-wielding man. The plaintiff requested a broad range of records regarding the incident. Most of the records were disclosed, but the Essex County Prosecutor’s Office withheld the body camera recordings (the Township previously settled and wasn’t a party to the appeal). The trial court held that those recordings were exempt as criminal investigatory records. The Appellate Division reversed on the basis that Attorney General Directive 2015-1 (which is here) regulated the circumstances under which body cameras were to be operated, maintained and kept on file. Thus, the recordings were not exempt as criminal investigatory records, and no other exception applied.
This case is a good step forward. New legal issues are often developed first in trial court opinions, then unpublished appellate divisions, and eventually published appellate opinions. While there are no published opinions regarding body cams, the weight of authority holds that body cam recordings are not criminal investigatory records.
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