The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, requiring disclosure of police dashcam videos, turns primarily on whether such videos are criminal investigatory records under OPRA. But the court also held that the footage requested could not be withheld to protect the privacy interests of the people in the video. The court showed surprisingly little regard for citizens’ privacy rights in reaching this conclusion.

The key to the privacy ruling was the court’s determination that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” This is simply incorrect–surely drivers and other individuals have a reasonable expectation that their conversations with a police officer will be private, and will not be available to be placed on YouTube for anyone to view.

The court said that there is no harm caused by widespread disclosure of these videos because the public has a right to see them under OPRA. This statement begs the question that must be decided whenever a privacy interest is at stake: whether a person’s reasonable expectation of privacy regarding the specific record outweighs the need for public access to that record. OPRA’s privacy requirement is meaningless if, as the court suggested, there can be no harm caused by the disclosure of a government record.

These statements by the Appellate Division effectively mean that a valid privacy claim cannot be made when there is an OPRA request for a dashcam video. Hopefully, when the Supreme Court reviews this case, it will correct this unfortunate restriction on privacy rights.