I’ve noted previously that agencies face the risk that a judge will order disclosure of law enforcement records under the common law right of access, even where those records are confidential under OPRA. See part 3 of this post. The Appellate Division issued such an order yesterday, in an unpublished opinion involving documents in a Division of Criminal Justice (DCJ) investigatory file.

In Lagerkvist v. State of N.J., the plaintiff made an OPRA and common law request for the records of DCJ’s investigation into alleged “double-dipping” pension violations by three individuals in different county sheriff’s offices. The trial judge upheld the denial of the OPRA request, but ordered the release of a few of the documents in the investigatory file under the common law balancing test. The judge also rejected plaintiff’s common law claim as to three documents, and plaintiff appealed that ruling.

The Appellate Division disagreed with the ruling that two of the documents were entirely confidential. In reversing the trial court as to these two records, it emphasized that the investigation was closed and that the documents contained no information about investigative techniques or the agency’s deliberative process. However, the appellate court recognized that some of the information in the documents might be confidential, and remanded the case for this issue to be considered by the trial court.

The Appellate Division did uphold the complete confidentiality of the third record, an internal DCJ memo found to be covered by the deliberative process privilege.

The fact-specific nature of this opinion makes it of little value for guidance in handling future cases. But as mentioned, it’s a reminder that because of the common law right of access to records, agencies may be required to disclose certain records that are confidential under OPRA.

The past few months have seen the courts issue a number of opinions concerning OPRA and law enforcement records. In all of these cases, the courts have favored law enforcement interests in maintaining the confidentiality of records related to safety, security and the integrity of investigations.

The following are the most important recently-issued opinions.

–North Jersey Media v. Lyndhurst, in which the Appellate Division held that virtually every record connected with a criminal investigation is confidential, is the most significant law enforcement-related opinion issued under OPRA. The Supreme Court has been asked to review the ruling, but has not yet said whether it will take the case.

-In Gilleran v. Tp. of Bloomfield, the Appellate Division recognized the critical law enforcement interest in protecting the confidentiality of a building’s surveillance camera recordings. Trial courts have relied on the Gilleran opinion to reject efforts to disclose such recordings and other security-related information.

-In NJ 2d Amendment Soc. v. State Police, the Appellate Division upheld the validity of a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer.

-Trial judges have applied OPRA’s security exemption to records of school security drills and also to information about the travel expenses incurred by the State Police unit that protects the Governor.

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A Bergen County judge recently upheld the denial of an OPRA request for building surveillance camera recordings, taken within the Weehawken police station, on the basis of the security exemption. Blaettler v. Twp. of Weehawken.

The requestor asked for the videos from the cameras covering the “report area next to the police desk.” The judge agreed with Weehawken’s position that the videos were confidential under OPRA’s exemptions for security and safety. He relied on certifications from members of the police department which demonstrated the safety and security risks entailed in disclosing this area of the police station, including exposing building security shortfalls and revealing sensitive information on a computer terminal.

The judge also denied plaintiff’s common law claim for access to the videos, holding that the safety and security risks outweighed plaintiff’s disclosure interest.

It appears that the Township’s successful defense in this case may be attributable to the Appellate Division’s May 2015 opinion in Gilleran v. Bloomfield Twp. As I pointed out in this post on Gilleran, the Appellate Division recognized the security concerns inherent in releasing footage from video surveillance cameras, and explained what type of evidence is needed to support the withholding of such records. Consistent with what the court said in Gilleran, Weehawken provided appropriate, specific evidence showing the risks involved in disclosure.

As this NJ.com article suggests, Governor Christie’s announcement that he is running for president will bring more attention to the question of the costs involved in having State troopers guard the Governor during his campaign trips. I have previously explained, here and here, that this question raises significant OPRA issues. These issues are presented in a lawsuit pending in trial court, in which a requestor seeks disclosure of detailed information on the State Police protective unit’s expenses while traveling with the Governor.

This case has important ramifications beyond the specific interest in the activities of Governor Christie. The court’s ruling will set precedent on the scope of OPRA’s exemption prohibiting the release of security-sensitive records. Also, because the case turns on the question of whether revealing detailed travel expense information will interfere with State Police protective measures, it affects the ability of the State Police to protect all future governors and other officials while they are traveling.

It is not clear when the trial judge will issue her opinion, but it may come out in the next few weeks.

As previously discussed in this blog, the Appellate Division’s recent landmark ruling in North Jersey Media v. Tp. of Lyndhurst resolved several key OPRA issues, including what police records are covered by OPRA’s criminal investigatory records exemption. But despite the court’s comprehensive opinion, several questions remain as to whether certain law enforcement records are subject to public disclosure. Here are three important issues that are unsettled:

(1) Are Use of Force Reports exempt from disclosure?

The court in Lyndhurst held that UFRs pertaining to a criminal investigation are exempt, based in part on its conclusion that these documents are not required by law to be made, maintained or kept on file. However, in 2009, in O’Shea v. Tp. of West Milford, a different appellate panel reached the opposite conclusion with regard to the “required by law” standard, and determined that UFRs are public records. As a result, in future cases, it is still possible that a trial judge will order release of a UFR related to a criminal investigation, if that judge chooses to follow O’Shea.

(2) Are dash cams that record traffic stops and other non-criminal matters exempt from disclosure?

The Lyndhurst court held that police vehicle dash cam recordings (also known as mobile video recorders) are exempt criminal investigatory records. But the court specifically noted that its opinion dealt only with recordings of criminal investigations, and did not address whether recordings of motor vehicle violation stops are subject to disclosure.

This leaves open a huge question–whether OPRA requires public disclosure of videos showing police interaction with citizens in situations not involving a criminal investigation. With the growing prevalence of police vehicle and body cameras, agencies will be confronted with many OPRA requests for such videos, raising difficult privacy issues.

(3) What will be the impact of Lyndhurst on common law right of access claims to criminal investigatory records?

Although the opinion held that criminal investigatory records are confidential under OPRA, it also said that such records may be obtained under the common law right of access to public records. A law enforcement investigatory file that is exempt under OPRA may be ordered released under the common law, depending on the specific circumstances of the case. For an example, see this unpublished Appellate Division opinion.

The Lyndhurst court remanded to the trial judge to assess the competing interests under the common law standard: what the Appellate Division characterized as the “intense” public interest in claims that police used excessive force, balanced against the “substantial” interest in conducting a proper investigation. It will be interesting to see if trial courts in future cases interpret the Appellate Division’s discussion of the common law interests to favor disclosure or confidentiality of investigatory records, particularly in high profile matters involving allegations of police misconduct.