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.