A divided New Jersey Supreme Court ruled today in Paff v. Ocean County Prosecutor’s Office that the “criminal investigatory records” exemption to public disclosure under New Jersey’s Open Public Records Act, permits the Ocean County Prosecutor’s Office (OCPO) to withhold disclosure of a police mobile video recording (MVR) of a traffic stop.  The case related to a police chase ending in Barnegat Township in which a police officer was investigated and ultimately charged with causing a police dog to injure the driver.  Paff, an activist for government transparency – see the Press of Atlantic City’s profile of him here – requested the MVR from the OCPO, which conducted the internal investigation.

The criminal investigatory records exemption allows public records to be withheld if they are “not required by law to be made” and if it pertains to a criminal investigation.  Reversing the Appellate Division (see our discussion on August 10, 2017, Litigation Law Blog New Jersey Courts Hands Victories to Open Government Records Advocates), the Supreme Court found that MVR was not “require by law” because the Barnegat Township Police Department’s directive did not have the force of law.    Relying on the Court’s recent decision in North Jersey Media Group v. Lyndhurst, also discussed in our August 10, 2017 Post, the Court compared the local directive to the Attorney General’s Use of Force Policy, which required creation of Use of Force Reports statewide and has the force of law on all police departments.  Since the MVR related to the investigation of the driver for evading arrest, the Supreme Court held it could be withheld under that exemption.

The Court, however, noted that the MVR would not be exempt under the “investigation in progress” exemption or due to the driver’s asserted privacy interest because of the strong public interest in police transparency.  The decision sends the case back to the trial court to determine whether the record should be released under the “common-law right of access” a broader doctrine that requires the court to balance competing interest to determine public access to records.