Category Archives: Law enforcement records

Appellate Division’s New Dashcam Opinion: A Blow To Privacy Rights

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The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, requiring disclosure of police dashcam videos, turns primarily on whether such videos are criminal investigatory records under OPRA. But the court also held that the footage requested could not be withheld to protect the privacy interests of the people in the video. The court showed surprisingly little regard for citizens’ privacy rights in reaching this conclusion.

The key to the privacy ruling was the court’s determination that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” This is simply incorrect–surely drivers and other individuals have a reasonable expectation that their conversations with a police officer will be private, and will not be available to be placed on YouTube for anyone to view.

The court said that there is no harm caused by widespread disclosure of these videos because the public has a right to see them under OPRA. This statement begs the question that must be decided whenever a privacy interest is at stake: whether a person’s reasonable expectation of privacy regarding the specific record outweighs the need for public access to that record. OPRA’s privacy requirement is meaningless if, as the court suggested, there can be no harm caused by the disclosure of a government record.

These statements by the Appellate Division effectively mean that a valid privacy claim cannot be made when there is an OPRA request for a dashcam video. Hopefully, when the Supreme Court reviews this case, it will correct this unfortunate restriction on privacy rights.

 

 

Appellate Division: Police Dashcams Are Not Exempt Criminal Investigatory Records

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The Appellate Division ruled today that police vehicle camera videos are not exempt criminal investigatory records under OPRA. Paff v. Ocean County Prosecutor. However, this opinion has little precedential impact, because there are conflicting Appellate Division opinions on the issue of whether such videos must be disclosed. In addition, this question will be resolved by the Supreme Court, perhaps by the end of this year.

The appellate court’s conclusion that criminal investigatory exemption did not apply rested on its determination that the police dashcam recordings were required by law to be made, maintained or kept, based on the fact that the township police chief had ordered all officers to activate their vehicle’s mobile recording device when making a traffic stop. The court specifically noted that its analysis and holding conflicted with that of the Appellate Division’s Lyndhurst opinion, where different appellate judges said that police vehicle videos are criminal investigatory records and are not required by law to be made, maintained or kept.

One member of the 3-judge panel in the Paff case, Judge Gilson, filed a dissenting opinion. The judge determined that the police chief’s order did not meet the “required by law” standard.

When there is a dissent, the losing party has an automatic right of appeal to the Supreme Court. I have no doubt that the prosecutor’s office will appeal, meaning that the Supreme Court will resolve whether the recordings are exempt.

And even before taking up the appeal in Paff, the Supreme Court may resolve the question in its consideration of the Lyndhurst case. That appeal has been pending with the Supreme Court since  December 2015, so the Court is likely to issue an opinion around the end of 2016.

Due to the conflicting Appellate Division opinions, until the Supreme Court rules, there will be no clear answer as to whether OPRA requests for dashcam recordings must be granted.

 

 

The “Glomar” Response to OPRA Requests For Investigation Information

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An OPRA request to a law enforcement agency for records of its investigation of a particular person poses a knotty issue where, as is often the case, there has been no public disclosure of whether that individual is under investigation. In that situation, the agency would necessarily seek to protect the confidentiality of the investigation. But a response that the agency’s records are exempt (under, for example, OPRA’s investigatory or privacy exemptions) would reveal the existence of an investigation–a disclosure that itself would harm the affected person’s privacy interest.

FOIA case law solves this problem by permitting agencies to give the so-called Glomar response; this means that the agency tells the requestor that it neither confirms nor denies the existence of the records requested. The Justice Department explains that this response is necessary under FOIA to avoid revealing exempt information, such as whether someone is being investigated.

This concept is not limited to federal law. Recently, the New York Appellate Division held that the Glomar response is proper under New York’s public record law, and upheld the NYPD’s refusal to confirm or deny the existence of investigatory records concerning certain individuals. Matter of Abdur-Rashid.

No New Jersey court has ever addressed the validity of this type of response under OPRA. Nevertheless, the FOIA Glomar approach is a sensible way to avoid harming privacy and investigatory interests, which OPRA seeks to protect, and it ought to be followed in New Jersey.

The GRC and the Issue of Access to Building Security Camera Footage

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In November 2015, the Supreme Court granted review in Gilleran v. Bloomfield Tp., to determine whether video recordings from a security camera mounted on a public building are exempt under OPRA. The Court has not yet heard oral argument in the case, so it’s likely that its opinion will not be issued until late 2016 or early 2017.

Meanwhile, OPRA requestors continue to seek disclosure of building security camera footage, and file challenges to the denial of access to these videos. In a recent decision, Jones v. Teaneck (interim decision April 28, 2016), the GRC  said that the custodian must prove, at a hearing before an ALJ, that the security camera recording in question there is exempt.

Suprisingly, the GRC did not mention the Gilleran case in this decision. This is particularly troubling because it’s possible that the Supreme Court may hold, in Gilleran, that a public body is not obligated to present specific evidence in support of maintaining the confidentiality of this record in each case. The Court could determine that there is always a strong security interest in the confidentiality of security camera footage, and rule that OPRA’s security exemption bars access to these recordings in all cases.

The GRC should have held the Jones case pending issuance of the Gilleran opinion, rather than requiring the parties to engage in litigation that may be rendered unnecessary by the Supreme Court’s decision.

 

 

Supreme Court To Decide Two OPRA Law Enforcement Records Cases

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The Supreme Court has issued several OPRA opinions, but it has never dealt with OPRA’s provisions governing law enforcement records. But now the Court has decided to review two cases involving such records.

The Court announced yesterday that it will review the Lyndhurst case, concerning the scope of OPRA’s exemption for criminal investigatory records. This comes only a few weeks after the Court agreed to hear Gilleran v. Township of Bloomfield, which involves interpretation of OPRA’s exemptions for records related to safety and security.

The importance of these cases can’t be overstated–they affect virtually every law enforcement record, and as a result, will have a substantial impact on law enforcement operations.

I think it’s highly likely that the Court will rule in favor of the public agencies in both cases. Unlike many cases reviewed by the Supreme Court, these matters don’t present a difficult call for the justices, and in fact involve fairly weak arguments by the requestors.

The requestor’s position in Lyndhurst is not supported by either law or logic; it essentially argues that OPRA’s criminal investigatory exemption does not apply to most of the records in a law enforcement agency’s investigatory file. While the Court may determine that some of these records may be subject to release (perhaps under a common law theory), I think the Court will uphold the longstanding rule in New Jersey that provides confidentiality to most of the contents of a criminal investigatory file.

Similarly, in Gilleran, I predict that the Court will rule that OPRA’s safety and security requirements prohibit unfettered public access to building surveillance camera videos. The recent terrorist attacks are reminders of why the legislative intent is to preclude disclosure of this type of security-related material held by public agencies.

Since the Court only recently granted review, opinions in these cases will probably not be issued until at least a year from now.

Supreme Court Grants Review Of Lyndhurst Case

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The Supreme Court announced today that it will review the requestor’s appeal in North Jersey Media v. Lyndhurst, in which the Appellate Division determined that almost every record connected with a criminal investigation is confidential under OPRA.

As I’ve previously noted, the Lyndhurst matter is a seminal case. The Supreme Court has never before reviewed OPRA’s exemption for criminal investigatory records.

Press articles about the case (including this one authored by the attorney for the requestor) have focused on one aspect, the holding that police motor vehicle recordings are covered by OPRA’s criminal investigatory records exemption. But it’s important to understand that the case actually involves many other critical law enforcement records, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports–in short, all of the records that are routinely part of an investigation.

 

 

Privacy Protection Applies To Public Employees Who Are Subjects Of Investigation

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Typically, when an investigation of possible government wrongdoing comes to light, newspapers and other requestors use OPRA or the common law to try to find out the names of the public employees under investigation. However, this information is confidential under the law’s protection of privacy.

This was confirmed again in a recent Appellate Division case, discussed here, which granted access under the common law to some records of an investigation into whether county employees had improperly used county equipment. While holding that certain investigatory records had to be released, the court upheld the confidentiality of witness names and similar information, citing the interests of privacy. The opinion does not say whether this holding covers the names of the employees who were investigated, but a subsequent news report makes clear that these names were kept confidential by the court.

This result is consistent with the settled rule that  basic principles of privacy prohibit the public release of names of individuals who are investigated, but ultimately not charged with a crime. Similarly, OPRA’s personnel exemption bars disclosure of the identities of public employees (including police) who are being investigated for possible disciplinary infractions.

Unfortunately, despite this clear law, requestors continue to ask custodians and courts to reveal this confidential information.

Once Again, A Court Requires Release Of Criminal Investigatory Records Under The Common Law

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Only a few weeks ago, I discussed an Appellate Division opinion ordering disclosure of criminal investigatory records from a closed investigation under the common law right of access, even though the records were held confidential under OPRA. Today the Appellate Division issued a similar ruling in a different case.

This matter involved a request for the records of the Warren Prosecutor’s Office’s investigation into the possible misuse of County-owned equipment by county jail officers. The trial judge upheld the denial of access to these records under OPRA, and the requestor did not appeal this ruling. The trial judge ordered disclosure of some of the records under the common law.

The Appellate Division affirmed the common law decision. Unfortunately, its opinion contains neither a description of most of the records ordered released nor a discussion of why the court determined that the disclosure interest in these records outweighed the confidentiality interest applicable to criminal investigatory records. The Appellate Division simply said that the trial judge properly balanced the competing interests, leaving custodians with no guidance as to how to assess future common law requests for criminal investigative files.

However, the opinion is helpful in showing that the court appreciates that the common law does not override the privacy interests of people involved in criminal investigations. The Appellate Division affirmed the trial court’s order that the names and identifying information of witnesses be redacted. According to the appellate court, this addressed the confidentiality and privacy concerns raised here.

The bottom line: when a common law request is made for records of a closed criminal investigation, a court may order disclosure of some of the records, but probably not those that involve privacy interests or other privileged material.

 

 

The Supreme Court Has The Opportunity To Define What Is A Substantially Disruptive OPRA Request

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As discussed here, the Gilleran Supreme Court case is extremely important, because it involves the Court’s first review of OPRA’s security exemptions. And the case also gives the Court the opportunity to decide another significant OPRA issue–the meaning of the statutory provision allowing a custodian to deny a request that would “substantially disrupt agency operations.” N.J.S.A. 47:1A-5g.

Although some court opinions have mentioned this provision, no opinion has definitively interpreted it. In my experience, determining whether a particular request is substantially disruptive is one of the most difficult issues facing public bodies. In the absence of standards set forth in the statute or by a court, agencies struggle to decide whether they are legally obligated to devote an extensive amount of time and resources to answer a request.

The request at issue in Gilleran is  a clear example of a substantially disruptive request. The Appellate Division declined to resolve the case on this basis, but it acknowledged that Gilleran’s request, for 14 hours of video footage, was “unreasonably burdensome,” “virtually impossible to accomplish without devoting the time and services of multiple employees,” and not within OPRA’s contemplation. It would appear that Gilleran’s request is precisely the kind of request that the statute’s substantial disruption language is directed at.

Presumably, the Supreme Court, in reviewing a case presenting such an invalid request, will not ignore the necessity of addressing the substantial disruption issue. The validity of an OPRA request must always be resolved at the outset; OPRA does not require custodians to attempt to answer requests that are “unreasonably burdensome” (in the words of the Appellate Division here) or otherwise invalid.

In this case, the Supreme Court needs to decide at the outset whether Gilleran’s request, and similar requests for surveillance camera recordings, are invalid under OPRA’s substantial disruption provision. Such a decision will provide crucial guidance to agencies that goes far beyond the issue of access to surveillance footage–agencies are often confronted with many different types of massive OPRA requests that may substantially disrupt operations.

 

 

 

 

Appellate Division Opinion On Civil Discovery Of Criminal Investigatory Records

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A recent Appellate Division opinion serves as a reminder that OPRA’s exemption for criminal investigatory records is not dispositive of a civil litigant’s discovery request for such records. The court reaffirmed the well-established principle that a civil litigant may obtain discovery of criminal investigatory records, if he can prove that his need for the information for the litigation outweighs the strong confidentiality interest that covers these records.

In Varnelas v. Morris County School District, plaintiff sued various defendants over the tragic suicide of her son, allegedly caused by bullying and assaults committed by two juveniles and an adult, Michael Conway. The Morris County Prosecutor’s Office had investigated and indicted Conway. In connection with the civil action, plaintiff issued a discovery subpoena to the Prosecutor’s Office for its investigatory file on Conway. The Prosecutor’s Office refused to comply with the subpoena, based on OPRA’s exemption for criminal investigatory records.

The Appellate Division stated that OPRA’s exemption does not forbid production of the records when they are sought for civil discovery. Instead, the common law balancing of needs test applies to the litigant’s request. The Appellate Division remanded the case for the trial judge to apply the balancing test to determine whether plaintiff’s need for the information in the records outweighed the confidentiality interest here.

This opinion breaks no new ground, as the law is clear that civil litigants can potentially obtain discovery of OPRA-exempt records, depending on the outcome of the balancing test. Still, it’s a useful reminder that trial judges must engage in a careful evaluation of the confidentiality and litigation interests at stake before granting a discovery request for such a record.