It is an open question whether OPRA requires disclosure of police vehicle videos of routine traffic stops and other matters that do not involve a criminal investigation. Pennsylvania’s appellate court issued an opinion today holding that the state’s  public records statute, the Right to Know Law, requires disclosure of videos, or portions thereof, that do not show criminal investigatory activities. New Jersey courts occasionally look to other state court opinions for guidance; it will be interesting to see, when the OPRA police video issue reaches the Appellate Division, whether the court takes note of this Pennsylvania ruling.

The opinion actually allows only limited disclosure of police vehicle videos. The videos in question showed two State Police troopers responding to a traffic accident. Pennsylvania’s law, like OPRA, exempts criminal investigatory records. The State Police argued that the videos fell within the exemption because the drivers in the accident were issued citations, which are “criminal summary offenses.” Although the court rejected the position that the video recordings were entirely confidential under the criminal investigatory exemption, it agreed that anything in the videos which showed investigatory activities should be redacted.

The court said that investigatory activities include the troopers’ discussions with the drivers and witnesses. As a result, it permitted redaction of the audio component of these portions of the videos. I suspect that in most police dash cam videos, such discussions will constitute most of the audio.

One video had no audio. The court ordered the entire video to be disclosed, on the ground that the video, without sound, revealed nothing about the investigation into the accident.

In an unpublished opinion issued today, the Appellate Division held that a town’s volunteer rescue squad is not covered by OPRA. Brooks v. Tabernacle Rescue Squad.

The Tabernacle Rescue Squad is a non-profit 501-C3 organization created and operated by private citizen volunteers who provide emergency rescue services for the Township. In seeking records from the squad, the requestor argued that it is a public agency because it receives substantial financial support from the Township (at least 40%-50% of the squad’s funding), has limited immunity under the Tort Claims Act and performs a government function as the Township’s exclusive rescue organization.

The Appellate Division determined that these factors do not render the squad a public agency under OPRA. Most significantly, it agreed with the trial judge’s statement that under the law, an organization does not become subject to OPRA solely because it receives a substantial amount of government funding. Instead, the appropriate inquiry is whether the entity was created and controlled by a public agency.

The court emphasized that the squad was founded  by private citizens, not the Township, and conducts its operations “wholly free” of control by the Township. The court also noted that whether the entity performs a government function is not the legal test for determining if OPRA applies, but in any event it rejected the notion that providing ambulance services is a government function.

In a recent opinion dismissing an OPRA declaratory judgment suit brought by a town, discussed here, the judge also said that the requestor’s New Jersey Civil Rights Act claim against the town was still open. The judge did not mention the allegations underlying this claim or analyze the legal arguments in any way.

A valid Civil Rights Act cause of action requires showing that the plaintiff’s constitutional rights have been violated. It is not unusual for requestors to include a count in an OPRA lawsuit alleging that the public body’s denial of access to records also violated their constitutional rights. However, the courts have not addressed whether such a claim is legally viable in an OPRA dispute.

In this context, a civil rights claim rests on the theory that the improper denial of access to public records violates a requestor’s First Amendment right to obtain information from the government. News organizations argue that this is part of their constitutional right to gather news. Over 20 years ago, in public records cases involving the old Right to Know Law and the common law, the New Jersey Appellate Division rejected the argument that there is a constitutional right to government information. There has been no New Jersey case law on this subject since then.

It seems to me that OPRA’s mandates should not be transformed into constitutional rights, and that the earlier court opinions should continue to apply to prohibit Civil Rights Act claims based on OPRA violations. However, the issue of whether a denial of access to records may also be a constitutional violation cannot be considered settled; it is not clear that a court today would apply the pre-OPRA judicial opinions to this question, in view of the sweeping changes to New Jersey public records law and policy that have resulted from the passage of OPRA.

Resolution of this issue has important consequences for public bodies, because civil rights litigation exposes them to the risk of substantial monetary damage claims.

As discussed here, the Appellate Division is considering the novel issue of whether public bodies may file a declaratory judgment action to resolve the validity of an OPRA request. A trial court judge recently issued an opinion, Hamilton Tp. v. Scheeler, holding that public bodies are not permitted to bring such suits. This opinion is of limited importance, in light of the impending ruling from the appellate court, but it has a few interesting aspects.

In Hamilton, requestor Harry Scheeler sought police department building video camera surveillance footage from Hamilton Township (Atlantic County). The Township filed a declaratory judgment action claiming it should be not be obligated to respond to surveillance video OPRA and common law requests from Scheeler and “Amy Von Bosse,” the latter a fictitious name used by Scheeler to make anonymous OPRA requests.

The trial judge held that OPRA does not permit a public agency to file suit to ask a court to adjudicate a records dispute, reasoning that under the statute, only the requestor is authorized to choose to file an OPRA complaint. The judge also said that allowing declaratory judgment suits would be contrary to OPRA’s policies, on the basis that such litigation would have a “chilling effect” on requestors. The judge awarded attorney fees to Scheeler because he had prevailed on the OPRA declaratory judgment issue.

I’m struck by several ironies presented by this opinion. One is that the judge’s award of attorney fees to the requestor undercuts a key argument against OPRA declaratory judgment raised by the New Jersey Press Assn. in the pending appeal, that permitting such lawsuits will deprive requestors of their ability to obtain attorney fees under OPRA. The Hamilton ruling suggests that, contrary to the NJPA’s claim, judges will award attorney fees to requestors who are successful in OPRA declaratory judgment actions.

Another great irony is that although the opinion rests in part on the idea that requestors will somehow be chilled by OPRA declaratory judgment suits, the requestor who was sued in this case actually contradicts this theory. Scheeler is a frequent OPRA requestor and litigant who has publicly declared that he is not intimidated by government efforts to dispute his attempts to gain access to records.

As mentioned above, the Appellate Division will resolve the validity of OPRA declaratory judgment litigation in its opinion, which may be issued within a few months.