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 For an example, see this unpublished Appellate Division opinion.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.