The GRC has issued its first decision on the question of whether police body camera footage is accessible under OPRA. Dericks v. Sparta Twp. (Sept. 29, 2017).

The GRC ruled that the criminal investigatory exemption does not apply to police body camera video concerning a criminal matter, because these recordings are required by law–namely, an Attorney General Law Enforcement Directive–to be made, maintained or kept on file. See this post for a discussion of how the Supreme Court’s Lyndhurst opinion made clear that Attorney General Directives have the force of law for purposes of the criminal investigatory record exemption.

In a footnote, the GRC stated that the Attorney General’s Directive does not provide confidentiality to body camera recordings under OPRA. It noted that the Directive places restrictions on disclosure of these recordings, but interpreted the Directive as saying that the restrictions do not apply when responding to an OPRA request.

The language of the Directive doesn’t seem to support the GRC’s interpretation. I read the Directive as providing that OPRA requests for these records must be referred to the Division of Criminal Justice or the County Prosecutor for a determination of whether the public need for access outweighs the law enforcement interest in maintaining confidentiality.

It’s surprising the GRC chose to deal with the issue of the requirements of the Directive in the Dericks opinion, because it did not need to reach this question in this case. The GRC held that the recording in this case was exempt on another basis–a statute providing confidentiality to records pertaining to juveniles charged with delinquency.