Dashboard camera

The majority of a sharply divided New Jersey Supreme Court on Monday said the public does not have an automatic right of access under the state's Open Public Records Act to police dashcam videos, distinguishing the case at bar with a 2017 ruling in which it deemed dashcam footage disclosable.

In a 4-3 ruling, the majority said dashcam footage not required by statute to be taken can be considered a record of criminal investigation that is exempt from OPRA.

“They constitute criminal investigatory records … and they are therefore not subject to disclosure under OPRA,” wrote Justice Anne Patterson for the majority, siding with the dissent in the Appellate Division's prior ruling in the case.

Chief Justice Stuart Rabner and Justices Faustino Fernandez-Vina and Lee Solomon joined in Patterson's ruling.

Justice Barry Albin, joined by Justices Jaynee LaVecchia and Walter Timpone, dissented.

Both sides in the case, Paff v. Ocean County Prosecutor's Office, had sought guidance following the court's July 2017 ruling in North Jersey Media Group v. Lyndhurst, where the court opened the door to dashcam videos being released to the public on formal request.

Video footage generally is considered a disclosable public record, though video, like other types of materials, is subject to an OPRA exemption that denies disclosure of records of criminal investigations, a distinction that turns on the question of whether the record is “required by law to be made.” If the record isn't required by law to be made, it is a record of an investigation, and it may be withheld from disclosure.

The Paff majority distinguished its ruling and that in Lyndhurst by noting that Lyndhurst police, in recording the dashcam footage, was complying with a directive from the New Jersey Attorney General's Office, which has the authority to establish statewide policy that carries the force of law.

There is a “significant distinction” between an attorney general's directive and an order from a local police chief, Patterson said—in this case, from Barnegat Township.

“Here, the MVR recordings were not made and retained in compliance with any law or directive carrying the force of law,” Patterson said. “No statute gives a general order promulgated by the Barnegat Township Police Chief the force of law,” she added.

The Appellate Division majority's opinion saying otherwise “falls short of the mark,” she said.

Patterson said that lower courts also should consider whether videos should be released over the privacy objections of the subjects in the video. In this case, the person arrested objected to the release.

A divided Appellate Division panel ruled in a 2016 published decision that dashcam recordings are disclosable, and said the recordings should not be shielded under the privilege for ongoing criminal investigations, affirming a decision by Ocean County Superior Court Judge Vincent Grasso. The OPRA request to make public the Barnegat Police Department dashcam recording came from open-government activist John Paff. The dissent said such recordings should be considered records of criminal investigations.

The case involves a Jan. 29, 2014, incident in which a Tuckerton police officer attempted to stop a driver, leading to a chase that ended in Barnegat. The driver was charged with eluding, but the Tuckerton officer, in an incident that was captured on the Barnegat cameras, also was charged with assault and misuse of a police dog.