The Supreme Court’s recent opinion in Paff v. Ocean County Prosecutor’s Office is an important victory for privacy rights, even though the Court rejected the specific claim made in the case, that the arrested driver’s privacy would be violated by release of the MVRs of her arrest.

How can an opinion rejecting a privacy claim be a win for privacy interests? Because the Court expressly stated that as a general matter, people have a reasonable expectation of privacy in MVRs. The Court made clear that in all cases involving the potential release of such a video, the privacy interests of the individuals shown must be considered.

With this language, the Court corrected the problematic Appellate Division opinion in the Paff case. The appellate court had held that people have no privacy interest whatsoever with regard to MVRs, stating: “Drivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” Fortunately, the Supreme Court did not leave in place this erroneous conclusion, and instead issued an opinion that appropriately protects the privacy rights of people shown in police videos.

The driver in the Paff case failed to satisfy her specific claim of privacy because she presented no explanation for her position. But the key point is that the Court recognized that those shown in MVRs can make legitimate claims that their privacy may be harmed by disclosure of the video.

In Paff v. Ocean County Prosecutor’s Office, issued today, the Supreme Court held that OPRA’s criminal investigatory record exemption applies to police dash cam recordings (MVRs) when the MVR is made pursuant to an order of the local police chief. The effect of this ruling is that the public cannot obtain, under OPRA, any MVR connected with a criminal investigation.

The issue in this case was whether a police chief’s order requiring his department’s officers to make MVRs in certain situations means the MVR is required by law to be made. If a record is required by law to be made, it does not satisfy the criminal investigatory record exemption. The Court ruled that an order issued by a police chief does not have the force of law, and therefore the exemption applied.

This opinion, together with the Court’s 2017 Lyndhurst opinion, means that all police MVRs pertaining to a criminal investigation are exempt under OPRA. In Lyndhurst, the Court held the MVR to be exempt because there was no requirement, either by the local police department or in Attorney General directives, that the MVR be made. In Paff, the Court made clear that MVRs are exempt even if a police department does have a requirement that MVRs be made.

An MVR may still be accessible under the common law, depending on the circumstances of the particular case. The Court remanded the Paff case for a determination of whether the MVRs should be disclosed under the common law.

The Court also held that OPRA’s privacy exemption did not preclude disclosure of the MVRs. The driver had objected to release on privacy grounds, but identified no specific privacy concerns. The Court indicated that there may be cases where a person’s reasonable expectation of privacy will warrant withholding or redacting a police video, but a generic privacy-based objection will not be sufficient.