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We live in an age where security cameras and cell phones have made video recording of events in public pervasive. It is no exaggeration to say that video recording of police encounters with civilians has radically changed both legal scrutiny and political debate about police behavior. To provide evidence, and to protect themselves against civilian video recording, police departments in New Jersey and around the country have long used dashboard video cameras in patrol cars and, more recently, body cameras worn by officers on foot. In Paff v. Ocean County Prosecutor's Office, our Supreme Court has just held in a 4-3 decision that such video recordings are “criminal investigatory records” exempt from disclosure under the Open Public Records Act. The decision turns on a close question of statutory construction involving the legal power of police chiefs to direct the activities of their subordinates. We believe that the dissent has the better of the argument, and we believe that the issue is of sufficient public importance that the Legislature should address it.

The decision turns on the somewhat convoluted language of OPRA. The statute first makes any “government record” subject to disclosure. It then exempts certain categories of records from disclosure by excluding them from the definition of “government record.” Among the excluded categories are “criminal investigatory records.” These are defined as records (i) “not required by law to be made, maintained or kept on file,” (ii) “held by a law enforcement agency,” that (iii) “pertains to any criminal investigation or civil enforcement proceeding.” To be an exempt criminal investigatory record, in other words, the document must be created and held by the law enforcement agency as a matter of discretion or policy, as opposed to legal compulsion.

No state statute or regulation requires local police departments to make or keep dashboard videos. In Paff, the municipal police chief promulgated a general order that directed officers to record with their dashboard cameras several categories of incidents, including traffic and criminal enforcement stops, pedestrian contacts, and police pursuits. He acted under the authority of N.J.S.A. 40A:14-118(c) “to prescribe the duties … of all subordinate personnel.” The three dissenters believed that this statute gave a police chief's general orders to the department the force of law with respect to its officers, and that dashboard videos created under the directive were therefore “required by law to be made.” The majority, on the other hand, concluded that the only purpose of N.J.S.A. 40A:14-118(c) was to define the authority of police chiefs vis a vis the municipal governing body in order to prevent it from meddling in department administration. Accordingly, it held, the general order to record police encounters did not have the force of law and did not make the recordings subject to OPRA.

We think the dissent's reading is supported by the plain language of the statute. We also think the majority failed to distinguish N. Jersey Media Grp. v. Twp. of Lyndhurst, which had held that an Attorney General directive requiring police departments to make and keep “use of force reports” had the force of law and that such reports were subject to disclosure under OPRA.

On the other hand, we can see that the dissent's reading would have broad, possibly unanticipated consequences for two reasons. Most broadly, the format and content of police department investigative record-keeping in general is prescribed by department regulation. If such regulations were treated as having the force of law because promulgated under the police chief's statutory authority, it would effectively wipe out the criminal investigatory records exclusion from OPRA because all such records would be “required by law to be made, maintained and kept on file.” More narrowly, no state law or regulation requires police departments to video record public encounters. Making all such recordings broadly subject to OPRA might well deter departments from requiring them as a matter of policy.

We think any 4-3 Supreme Court decision on statutory construction should invite the Legislature's attention. That is especially true on an issue of such general importance as public access to official recordings of on-the-street police activity. Without reference to existing categories under OPRA, the Legislature should consider whether and in what circumstances video recording should be mandatory for all police departments, and when such recordings should be available to the public in both ongoing and closed investigations. Alternatively, the Attorney General should use the authority as the state's chief law enforcement officer, recognized in Lyndhurst, to promulgate a statewide directive on police video recording, as was done for use-of-force reports.

Barry Evenchick, Joseph Hayden, Michael Stein and Justin Walder recused from this editorial.