In a recent editorial, the Law Journal Editorial Board opined that police dash camera and body camera videos should be subject to mandatory disclosure under the state’s Open Public Records Act (OPRA), and that our Supreme Court thus erred when it ruled that videos made during criminal investigations are exempt from OPRA disclosure. As a former chief counsel to the New Jersey Attorney General, I respectfully disagree.
Paff v. Ocean County Prosecutor’s Office concerned the recording of a specific police encounter that had made the news, but the case had much broader implications. The real question before the court was whether anyone, for any reason, can demand any police body or dash camera footage—or many hours of it—just because a police chief or other executive ordered the recording to be made.
One perfectly plausible response to this question is “Hey, police officers are armed public servants, and how can we tell the good cops from the bad cops if we can’t see video?” But consider:
What if a police officer recorded video inside your home while responding to a burglary call? Would you want details of your home’s layout and where you store your valuables to be subject to public disclosure?
What if the police officer was taking the statement of a domestic violence victim?
What if the video would reveal police tactics or communication protocols that would be useful to those planning future crimes or attacks if they could see it?
OPRA has exemptions covering, for example, personal privacy and security plans. How far courts will take those protections, however, remains unclear. Plus, if an OPRA requester seeks multiple hours of video, who is going to spend hours reviewing that footage to make sure nothing inappropriate will be released? Who will pay for that review? Who will pay to create redacted video that protects private information, and what happens if the police and the requester disagree about whether redactions were appropriate?
The uncertainty around these questions is a major reason why many municipalities in New Jersey have been hesitant to purchase body cameras, despite knowing all the good that cameras can do and potentially being able to tap millions of dollars in available grants. The Supreme Court’s decision brought some needed clarity to these issues.
To agree with the Supreme Court’s decision that videos made during criminal investigations are not subject to OPRA, moreover, does not mean one must think that all police videos should be secret. Police often want to release the “good” videos and should not expect to keep the few bad ones under wraps for very long.
Under existing Attorney General’s Office guidelines, body camera videos should be shown to those involved in police encounters who are considering complaints. Complainants in civil cases and defendants in criminal cases can receive videos through the discovery process. And, of course, videos relevant to criminal cases will become public records if they are shown in court.
These are just a few of the circumstances in which videos taken during criminal investigations would be subject to disclosure. The Supreme Court’s decision does not impact the presumption that videos of non-criminal encounters, like routine traffic stops, which are not records of criminal investigations, should be released upon request.
As for specific incidents of public concern that are criminal investigatory records, like the video at issue in Paff (which was publicly released before the Supreme Court issued its decision), police departments and the elected officials who oversee them will come under intense and often irresistible pressure to disclose revelatory videos they have, at least after they have had a reasonable opportunity to interview witnesses to ensure that their recollections would not be tainted by the release.
If police do not release videos of major incidents, the news media have another tool at their disposal besides pressure and OPRA: lawsuits under the state’s common law “right to know,” which require courts to review the videos in question and balance the public’s interest in disclosure against the government’s present need to keep the video confidential.
Common law “right to know” suits are less attractive to the OPRA plaintiffs’ bar because OPRA requires the government to pay the attorneys’ fees of successful plaintiffs, while the common law does not. That, however, is not a reason to put important privacy and security concerns at risk, or to greatly increase the cost to taxpayers, by making dash and body camera videos subject to automatic disclosure under OPRA.
The Paff decision should and will give rise to debate. In response to it, the Attorney General’s Office can promulgate mandatory standards as to when videos should be released, as the Law Journal’s editorial counseled. So, too, the Legislature can pass a new statute governing the release of police videos. The problem, however, is trying to craft rules of general application that will not yield bad results in unforeseen situations, result in unfunded mandates, or deter New Jersey municipalities from adopting body cameras. To those who have that responsibility now, I can say from experience that this an extremely difficult task.
Jeffrey S. Jacobson served as director of the Division of Law in 2014-15, and as chief counsel to the state attorney general in 2015-16. While in the Attorney General’s Office, he oversaw significant OPRA litigation, including North Jersey Media Group v. Lyndhurst.