The Supreme Court recently announced that it has granted review of a case that presents the novel issue of whether OPRA exemptions apply to police body worn camera recordings. Fuster v. Boro of Chatham.

My post on the Appellate Division’s opinion in this matter explains this case in more detail. In brief, the requestor argues that the Legislature abrogated the application of OPRA exemptions to body worn camera (BWC) videos when it enacted the BWC statute in 2021.

OPRA clearly precludes disclosure of the video requested here, pursuant to the exemption established in case law that maintains the confidentiality of investigative records regarding a person who has not been arrested or charged. But the requestor argues that this OPRA exemption does not apply to a BWC, because the BWC permits withholding BWC videos only for certain reasons, which do not include this OPRA exemption.

The Appellate Division didn’t buy this argument, but it remains to be seen how the Supreme Court will interpret the interplay of the two statutes. The stakes in this case are quite high: acceptance of the requestor’s position would mean that OPRA effectively no longer applies to requests for police BWC recordings.

In addition to this important issue, the case presents another question that may have a significant impact on law enforcement agencies. In granting review, the Supreme Court also said that it will consider whether the BWC video in question should be released under the common law. This will require the Court to examine whether the strong privacy and confidentiality interests that typically support not disclosing investigatory records should apply here.