Paff v. Ocean Cnty. Prosecutor's Office

• Decision Date: 13 August 2018
• Docket Number: 078040,A-17 September Term 2016
• Parties: John PAFF, Plaintiff-Respondent, v. OCEAN COUNTY PROSECUTOR'S OFFICE, Defendant-Appellant.
• Court: New Jersey Supreme Court

235 N.J. 1

192 A.3d 975

John PAFF, Plaintiff-Respondent,

v.OCEAN COUNTY PROSECUTOR'S OFFICE, Defendant-Appellant.

A-17 September Term 2016

078040

Supreme Court of New Jersey.

Argued February 27, 2018

Decided August 13, 2018

Samuel J. Marzarella, Chief Appellate Attorney, argued the cause for appellant (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, of counsel and on the briefs, and Nicholas D. Norcia, Assistant Prosecutor, on the briefs).

Richard M. Gutman argued the cause for respondent (Richard M. Gutman, on the briefs).

Raymond R. Chance, III, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Raymond R. Chance, III, of counsel, and Daniel M. Vannella, Deputy Attorney General, on the brief).

Ian C. Kennedy, Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Ian C. Kennedy and Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

Vito A. Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel and on the brief, and David L. Disler, on the brief).

Richard D. Pompelio argued the cause for amicus curiae New Jersey Crime Victims' Law Center (New Jersey Crime Victims' Law Center, attorneys; Richard D. Pompelio, of counsel and on the brief).

CJ Griffin argued the cause for amici curiae Latino Leadership Alliance of New Jersey, Garden State Equality, People's Organization for Progress, and the New Jersey Chapter of the Society for Professional Journalists (Pashman Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander Shalom, Edward L. Barocas, Jeanne M. LoCicero, and Iris Bromberg on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we apply the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to recordings made by mobile video recorders (MVRs) in police vehicles in compliance with a municipal police chief's general order. The MVR recordings at issue documented an incident in which police officers pursued and arrested a driver who had allegedly eluded an officer attempting a traffic stop. One officer's decision to deploy a police dog during the arrest led to internal affairs investigations and criminal charges against the officer.

Plaintiff John Paff sought access to the MVR recordings under OPRA and the common law, and filed suit when defendant the Ocean County Prosecutor's Office (OCPO) declined his request. The OCPO opposed disclosure of the MVR recordings based on three OPRA provisions: the statute's exclusion of a "criminal investigatory record" from the definition of a "government record," N.J.S.A. 47:1A-1.1 ; its exemption for records pertaining to an "investigation in progress," N.J.S.A. 47:1A-3(a) ; and its mandate that a public agency "safeguard from public access" a citizen's personal information entrusted to it, where disclosure of that information "would violate the citizen's reasonable expectation of privacy," N.J.S.A. 47:1A-1.

The trial court rejected the OCPO's arguments and ordered disclosure of the MVR recordings. A divided Appellate Division panel affirmed the trial court's determination.

Paff v. Ocean Cty. Prosecutor's Office, 446 N.J. Super. 163, 177, 141 A.3d 300 (App. Div. 2016). The panel's dissenting member concluded that the MVR recordings constitute criminal investigatory records for purposes of N.J.S.A. 47:1A-1.1. Id. at 203, 141 A.3d 300 (Gilson, J., dissenting). The OCPO appealed as of right on that issue, and we granted its petition for certification on the applicability of OPRA's "investigations in progress" exemption, N.J.S.A. 47:1A-3(a), and the statute's privacy clause, N.J.S.A. 47:1A-1.

We reverse the judgment of the Appellate Division panel. We concur with the panel's dissenting judge that the MVR recordings were not "required by law" within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. We agree with the Appellate Division panel's conclusion that the recordings are not within OPRA's "investigations in progress" provision, and that OPRA's privacy clause does not exempt the recordings from disclosure. We remand the matter to the trial court for its consideration of plaintiff's claim of a common-law right of access to the MVR recordings.

I.

A.

1.

On January 9, 2014, the Barnegat Township Police Department issued a revised version of its General Order No. 08-02 (General Order), entitled "Mobile Video Recording Equipment."¹ The General Order was issued under the authority of the Chief of the Barnegat Township Police Department, and applied only to that department.

The General Order stated the Barnegat Township Police Department's policy "to use [MVRs] in order to protect the members of this agency and to record information related to motorist contacts and other patrol related activities." The General Order instructed officers to record by MVR several categories of incidents. The incidents to be recorded included, among others, "[a]ll traffic stops, criminal enforcement stops, motorist aid situations, motor vehicle collisions, and pedestrian contacts in their entirety"; "[p]olice pursuits as defined by department policy"; "[m]ajor crime scenes"; and "[s]ituations which arise wherein the officer by reason of training or experience determines that the incident should be recorded."

Noting that "[t]he record function of the MVR equipment is automatically initiated when the patrol vehicle's emergency lights are activated or the wireless microphone is turned on," the General Order barred officers from deactivating the MVR's recording function when the vehicle's emergency lights are activated "except for dismounted posts or traffic details." Pursuant to the General Order, officers were prohibited from deactivating an MVR once it was activated to document an "incident or [motor vehicle] stop" until the conclusion of the incident or the release of the detained vehicle.

It is undisputed that the MVR recordings at the center of this appeal were made in compliance with the General Order.

2.

On January 29, 2014, a Tuckerton Borough police officer on patrol activated his overhead lights and attempted to pull over a motorist. The driver disregarded the officer and continued to drive, prompting a police chase. As the driver approached Barnegat Township, officers in that Township were alerted and two Barnegat Township patrol vehicles joined the Tuckerton officer's pursuit of the driver. The chase ended when the driver stopped her vehicle in the parking lot of a Barnegat Township municipal building. As officers at the scene removed the driver from her vehicle, a Tuckerton Borough police officer and his police dog arrived and participated in the driver's arrest. According to the OCPO, the officer unlawfully caused the police dog to injure the driver.

MVR equipment installed in two Barnegat Township police vehicles recorded the police pursuit and arrest of the driver. The trial court found, and the parties agree, that the recordings documented the interaction between the driver and the police dog.

As a result of the contact between the police dog and the driver, the OCPO and the Tuckerton Police Department initiated internal affairs investigations of the Tuckerton Borough police officer. The OCPO later charged the officer with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2 ; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ;² fourth-degree false swearing, N.J.S.A. 2C:28-2(a) ; third-degree tampering with public records or information, N.J.S.A. 2C:28-7(a)(1) ; and second-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b). The driver was charged with eluding, N.J.S.A. 2C:29-2(b), and resisting arrest, N.J.S.A. 2C:29-2(a)(3), and was issued four summonses for motor vehicle violations. Accordingly, the driver was both a victim of the Tuckerton officer's alleged criminal offenses and the defendant in criminal and motor vehicle violation proceedings arising from the same incident.

3.

Approximately four months after the driver's arrest, plaintiff wrote to the OCPO. He stated that he had read in a local newspaper that "the police dog's interaction with [the driver] may have been captured by a video camera that is owned or under the control of Barnegat Township."³ Pursuant to OPRA and the common-law right of access, plaintiff requested "a copy of the video of this incident."⁴

The OCPO objected to the release of the requested MVR recordings on the ground that they involved a "criminal investigation in progress, pursuant to N.J.S.A. 47:1A-3 as well as an internal affairs matter," under the New Jersey Attorney General's Guidelines on Internal Affairs and Procedures.

Plaintiff contested the OCPO's reliance on N.J.S.A. 47:1A-3. He argued that any record that was public before a criminal investigation or internal affairs investigation would not be exempt from production under OPRA. The OCPO responded by reiterating its objections to the production of the MVR recordings.

By letter dated June 30, 2014, counsel for the driver advised the OCPO of the driver's objection "to the release of any audio or video tapes at this time, because of privacy and other related issues."

B.

Plaintiff filed a verified complaint and order to show cause, seeking access to the MVR recordings on the basis of OPRA and the common-law right of access. In opposition to the order to show cause, the OCPO presented certifications by two officers setting forth the General Order governing MVR recordings, the driver's objection to production of the recordings, and...