Monthly Archives: July 2015

Pennsylvania Appellate Court Rules Some Police Dash Cam Videos Are Disclosable Under Public Records Law

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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.

 

Dramatic Increase In Number Of Decisions Issued By GRC

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The GRC has been criticized for the amount of time it takes to rule on complaints, but it’s worth noting that the agency now issues many more contested case decisions at each meeting than it did during its first several years of existence.

The GRC recently reported that it receives about 300 complaints per month, totaling approximately 4000 complaints since it was created. Many of these complaints are eventually withdrawn, settled or dismissed as clearly without merit. The remaining cases are contested and result in the GRC’s issuance of often lengthy opinions containing comprehensive analysis of the parties’ arguments regarding the various records and issues involved in the case.

I looked at the opinions issued at each meeting in this category of contested cases and found that the number of these decisions has substantially increased. In its first decade (2002 through 2011), the GRC issued around 15-20 of such decisions at each monthly meeting. For example, in 2008 it averaged 19 substantive decisions per meeting and in 2010 the average was 22.

But beginning in 2012, this number increased to over 30 per meeting. Over the most recent 12-month period, June 2014-June 2015, the GRC has issued an average of 36 substantive case decisions per meeting.

This near doubling of the number of substantive decisions issued each month suggests that the GRC is operating much more efficiently than previously.

New Legislation Makes Port Authority Subject To OPRA

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Although the Port Authority of New York and New Jersey makes its records publicly available under its freedom of information policy, as a bi-state agency it has not been subject to OPRA and New York’s Freedom of Information Law. New Jersey and New York recently enacted legislation intended to provide that the Port Authority is covered by both states’ open records statutes.

A few days ago, Governor Christie signed legislation which states that the Port Authority is an agency subject to OPRA as well as New York’s Freedom of Information Law, and New York enacted a law several months ago which similarly provides that the Port Authority’s records are covered by both states’ statutes.

Implementation of the two new statutes will raise a number of issues and require the Port Authority to consider changing some of its freedom of information procedures. As one example, OPRA’s fee for paper copies is only 5 cents per page, while the Port Authority’s copy charge has been 25 cents per page.

In addition, the disparity between the requirements of OPRA and New York’s records law will result in difficult legal questions. New York’s statute says that where there is an inconsistency between the two states’ public record laws, “the law of the state that provided the greatest rights of access” on the new law’s effective date shall apply. A similar provision was removed from the New Jersey legislation based on the conditional veto of the Governor, who pointed out that this language requires each state’s courts to interpret the law of the other state.

However, the Port Authority will have to review each state’s law in dealing with certain record requests, in view of the risk of facing litigation in New York under the “greatest rights of access” requirement. And if a challenge to such a determination is brought in New York, that state’s courts will have to interpret OPRA.

It will be interesting to see what effect, if any, such New York court opinions will have on New Jersey courts’ review of OPRA issues.

 

Appellate Division: Volunteer Rescue Squad Is Not Subject To OPRA

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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.