SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Antonio Fuster v. Township of Chatham (A-33-23) (089030)
Argued September 24, 2024 -- Decided January 21, 2025
WAINER APTER, J., writing for a unanimous Court.
In this appeal, the Court considers whether plaintiffs Antonio Fuster and his wife, Brianne Devine, may access the body worn camera recording of a statement Fuster made to the Chatham Township Police Department.
In May 2022, Fuster went to the Chatham Township Police Department to report that his special needs child had accused an adult male relative of sexual misconduct. Police interviewed Fuster, and the conversation was recorded on a body worn camera. Fuster and Devine reviewed the initial police report based on the interview and informed police that the report was inaccurate.
Fuster submitted an Open Public Records Act (OPRA) request for any written police reports and the body worn camera video footage of his interview. A records clerk denied the request for the video. The next day, Fuster submitted another OPRA request, this time stating that he was requesting copies of the video under the common law. Fuster also emailed Chatham records custodian Gregory LaConte to request that the video recording be preserved for three years pursuant to the Body Worn Camera Law (BWCL), N.J.S.A. 40A:14-118.5. Devine also submitted an OPRA Request Form, requesting to view the video of Fuster’s in-person interview “to determine whether or not to file a request for a 3 year retention period.” LaConte sent Fuster and Devine identical letters denying their OPRA requests.
Plaintiffs filed a complaint against the Township of Chatham and LaConte (together, defendants). The trial court entered judgment in favor of defendants. The Appellate Division affirmed, concluding that the four “exemptions listed in N.J.S.A. 40A:14-118.5(l) are in addition to OPRA’s exemptions” and that “the video was exempt from disclosure under judicial case” law’s “well-established confidentiality exemption protecting an uncharged person’s law enforcement records from disclosure.” 477 N.J. Super. 477, 491, 493, 498 (App. Div. 2023). The Court granted certification. 257 N.J. 18 (2024).
1 HELD: Subsection (k) of N.J.S.A. 40A:14-118.5 does not permit plaintiffs to review the video in this case because Fuster has already requested that the video be retained for three years and Devine is neither the subject of the video nor one of the other specified persons entitled to review. The Court does not decide whether subsection (l) of the BWCL abrogates OPRA’s exemptions because there is no OPRA exemption that supports defendants’ refusal to release the video in this case. OPRA does not contain any explicit exemption for information received by law enforcement regarding an individual who was not arrested or charged. Neither has New Jersey case law ever held that such information must automatically be withheld under OPRA. The Court therefore reverses the Appellate Division’s judgment and orders that the body worn camera footage be released to plaintiffs under the circumstances of this case, without reaching plaintiffs’ common law claims.
1. Enacted in 2020, the BWCL provides that the subject of a video, as defined in N.J.S.A. 40A:14-118.5(a) -- or the subject’s parent or legal guardian, or next of kin or designee -- “shall be permitted to review [a] body worn camera recording in accordance with the provisions of [N.J.S.A. 47:1A-1 to -13, i.e., OPRA] to determine whether to request a three-year retention period.” N.J.S.A. 40A:14- 118.5(k). Here, defendants erred in refusing to permit Fuster to review the video “to determine whether to request a three-year retention period.” However, because he went ahead and requested the extended retention period anyway, subsection (k) no longer grants Fuster the right to review the video. And subsection (k) never provided such a right to Devine, as she is neither a subject of the recording nor one of the other specified persons entitled to review under that provision. Subsection (k) therefore does not help plaintiffs in this case. (pp. 16-19)
2. N.J.S.A. 40A:14-118.5(l) states that, “[n]otwithstanding that a criminal investigatory record does not constitute a government record under [N.J.S.A. 47:1A- 1.1, OPRA’s definitions section], only the following body worn camera recordings shall be exempt from public inspection.” It then lists four categories of exempted recordings, none of which apply here. The word “only” most naturally suggests that the four exemptions enumerated in subsection (l) are the sole and exclusive types of “body worn camera recordings” that “shall be exempt from public inspection.” But despite the Legislature’s use of the word “only,” it is not clear that the Legislature meant for the four exemptions delineated in subsection (l) to be the only types of body worn camera video not available for public inspection without regard to OPRA’s separately enumerated exemptions. First, the Legislature repeatedly referenced OPRA in the BWCL. Second, it is not clear why the Legislature would have included the “notwithstanding” clause in subsection (l) if the Legislature meant for the BWCL to displace, rather than complement, OPRA when it comes to body worn camera videos. Ultimately, the Court does not decide whether subsection (l) of the BWCL abrogates OPRA’s exemptions because there is no OPRA exemption that supports defendants’ refusal to release the video in this case. (pp. 19-24) 2 3. Defendants here seek to exempt the footage from disclosure under two provisions of OPRA: N.J.S.A. 47:1A-9(b) and N.J.S.A. 47:1A-1. N.J.S.A. 47:1A-9(b) states that OPRA “shall not abrogate or erode any . . . grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law.” The trial court and Appellate Division rooted that exemption in North Jersey Media Group Inc. v. Bergen County Prosecutor’s Office (BCPO), which held, in what it referred to as a “matter of first impression,” that “records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality based upon long-established judicial precedent.” 447 N.J. Super. 182, 189 (App. Div. 2016). But BCPO was decided long after OPRA took effect, and none of the pre-OPRA cases on which it relied create any automatic grant of confidentiality for all law enforcement records related to a person not arrested or charged with a crime. Before OPRA was enacted, judicial case law in New Jersey had not established or recognized any automatic grant of confidentiality for all law enforcement records related to a person not arrested or charged with an offense. There was therefore nothing in this regard for OPRA to not “abrogate or erode” under N.J.S.A. 47:1A-9(b) when it came into effect. (pp. 24-30)
4. Nor does the protection of a “citizen’s reasonable expectation of privacy,” N.J.S.A 47:1A-1, justify withholding the video under OPRA. When assessing whether a disclosure would violate a citizen’s reasonable expectation of privacy, the Court considers the seven factors set forth in Doe v. Poritz, 142 N.J. 1, 88 (1995). Here, the party seeking access to the body worn camera video is not a third party but the subject of the video. And the withheld footage, required by law to be made, is not a recording of the State’s investigation, but a verbatim recording of Fuster’s own complaint as he made it to the police (Doe factors one and two). In terms of the privacy interests of the adult male relative, if Fuster wished to publicize the allegations, he could film himself making them again and broadcast the video on social media or to news sites (factors three and five). Disclosing a body worn camera recording to an alleged victim of their own statement would not discourage alleged victims from providing information to law enforcement (factor four). In this case, plaintiffs seek to inspect the video to advocate for their child and possibly file an internal affairs report (factor six). Finally, under the State Constitution, “[a] victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system.” N.J. Const. art. I, ¶ 22. Prohibiting an alleged crime victim from inspecting the body worn camera recording of their own police statement does not honor that mandate (factor seven). (pp. 31-35)
REVERSED.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FASCIALE, and NORIEGA join in JUSTICE WAINER APTER’s opinion. JUSTICE PIERRE- LOUIS did not participate. 3 SUPREME COURT OF NEW JERSEY A-33 September Term 2023 089030
Antonio Fuster and Brianna Devine,
Plaintiffs-Appellants,
v.
Township of Chatham and Gregory LaConte, in his official capacity as Records Custodian,
Defendants-Respondents.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 477 N.J. Super. 477 (App. Div. 2023).
Argued Decided September 24, 2024 January 21, 2025
CJ Griffin argued the cause for appellants (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the briefs).
William W. Northgrave argued the cause for respondents (McManimon, Scotland & Baumann, attorneys; William W. Northgrave, Ted J. Del Guercio, III, and Jessica F. Silva, on the briefs).
Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Lowenstein Sandler and American Civil Liberties Union
1 of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).
Sara M. Gregory, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, Michael L. Zuckerman, Deputy Solicitor General, Sookie Bae-Park, and Raymond R. Chance, III, Assistant Attorneys General, of counsel, Sara M. Gregory, of counsel and on the brief, and Viviana M. Hanley, Deputy Attorney General, on the brief).
Diana C. Manning submitted a brief on behalf of amicus curiae Partners for Women and Justice, Inc. (Bressler, Amery & Ross, attorneys; Diana C. Manning, Benjamin J. DiLorenzo, and Kyle A. Valente, on the brief).
Frank L. Corrado submitted a brief on behalf of amici curiae Reporters Committee for Freedom of the Press, Dow Jones & Company, Gannett, Hearst, The New Jersey Press Association, The New York News Publishers Association, New York Public Radio, and The New York Times Company (Barry, Corrado & Grassi, attorneys; Frank L. Corrado, on the brief).
JUSTICE WAINER APTER delivered the opinion of the Court.
Antonio Fuster went to the Chatham Township Police Department to
report that his special needs child had accused an adult male relative of sexual
misconduct. His interview with police was recorded on a body worn camera
video. Fuster and his wife, Brianna Devine (together, plaintiffs), seek access
2 to that video under the Open Public Records Act (OPRA) 1 and the common
law right of access.
Plaintiffs allege that they are entitled to the video under OPRA and the
common law because of two provisions of the 2020 Body Worn Camera Law
(BWCL), N.J.S.A. 40A:14-118.5(k) and (l). Subsection (k) instructs that “to
effectuate” N.J.S.A. 40A:14-118.5(j)(2)(e), which allows a member of the
public who is the subject of a body worn camera video to request that police
retain the video for three years, “the member of the public . . . shall be
permitted to review the body worn camera recording in accordance with the
provisions of [OPRA] to determine whether to request a three-year retention
period.” N.J.S.A. 40A:14-118.5(k). We hold that subsection (k) does not
permit plaintiffs to review the video in this case, because Fuster has already
requested that the video be retained for three years, and Devine is neither the
subject of the video nor one of the other specified persons entitled to review.
Subsection (l) provides: “Notwithstanding that a criminal investigatory
record does not constitute a government record under [OPRA’s definitions
1 On June 5, 2024, Governor Murphy signed into law L. 2024, c. 16, amending OPRA. Those amendments went into effect on September 3, 2024. Because the amendments are not at issue in this case, this opinion relies only on the text of OPRA in effect prior to September 3, 2024. All citations to N.J.S.A. 47:1A- 1 to -13 are to the pre-amendment language.
3 section], only the following body worn camera recordings shall be exempt
from public inspection.” It then lists four exemptions, none of which are
relevant to this case. N.J.S.A. 40A:14-118.5(l). Plaintiffs maintain that the
provision clearly states that these four exemptions are the only body worn
camera videos that can be exempt from public access under OPRA, and that
none of OPRA’s exemptions can apply to a body worn camera video. We
disagree. Given the Legislature’s repeated citations to OPRA in the BWCL, it
is not clear that the Legislature intended for the exemptions in subsection (l) to
supplant, rather than supplement, OPRA.
We need not decide the question, however, because even if OPRA’s
exemptions may apply to a body worn camera video, OPRA does not contain
any explicit exemption for “information received by law enforcement
regarding an individual who was not arrested or charged.” Cf. Fuster v.
Township of Chatham, 477 N.J. Super. 477, 483 (App. Div. 2023). Neither
has our case law ever held that such information must automatically be
withheld under OPRA.
We therefore reverse the Appellate Division’s judgment and order that
the body worn camera footage be released to plaintiffs under the circumstances
of this case. We do not reach plaintiffs’ common law claims.
4 I.
A.
We begin with the facts alleged in the complaint and the documents
attached thereto.
In May 2022, Fuster went to the Chatham Township Police Department
to report that his special needs child had accused an adult male relative of
sexual misconduct. Police interviewed Fuster. The conversation was recorded
on a body worn camera.
Fuster and Devine reviewed the initial police report based on the
interview. They informed police that the “report was grossly inaccurate and
was missing significant information” that Fuster had shared.
After police advised plaintiffs that no criminal charges would be brought
against the adult male relative, plaintiffs “sought to obtain a copy of the video
of Mr. Fuster’s interview with police so they could prove that the report was
inaccurate and perhaps file an internal affairs complaint against the officers.”
To that end, Fuster submitted an OPRA Request Form requesting any
written police reports and the body worn camera video footage of his
interview. A records clerk from the police department emailed Fuster the
written police reports but denied the request for the video. Handwritten notes
5 on Fuster’s OPRA form state: “Request for video of interview is denied as it
relates to a juvenile case & there are no charges.”
The written reports sent to Fuster -- including the initial police report
and supplementary reports -- were largely unredacted and included information
captured on the body worn camera video. The next day, Fuster submitted
another OPRA Request Form, this time stating that he was requesting copies of
the video of his interview under the common law.
On September 16, 2022, Fuster emailed Chatham records custodian
Gregory LaConte: “I will also be requesting said media . . . to be held on to
for the 3 years as stated in the [BWC] law just in case any mishaps occur in the
future.” Fuster followed up that afternoon, formally requesting “to preserve
the BWC recordings indefinitely in their original unaltered form.” On the
same day, Devine submitted an OPRA Request Form, asking to view the video
of Fuster’s in-person interview “to determine whether or not to file a request
for a 3 year retention period.”
LaConte sent Fuster and Devine identical letters denying their OPRA
requests. The letters stated that “disclosure would not advance the public
interest” and that “[a]ny disclosure could potentially impede agency
investigative functions by providing information potentially involving third
parties, who also have a privacy right.” The letters appended a five-page list
6 of OPRA exemptions. They did not identify which exemption, if any,
prevented release of the body worn camera footage of Fuster’s in-person
interview.
Devine sent a follow-up email asking LaConte to reconsider, specifically
citing the 2020 BWCL, which she stated granted her “a right to request this
video under OPRA because my juvenile child is the subject being spoken
about in the video, and we have a right to request a 3-year retention schedule.”
B.
Plaintiffs filed a complaint against the Township of Chatham and
LaConte (together, defendants), alleging defendants had unlawfully denied
their right to access the body worn camera video under both OPRA and the
common law. Plaintiffs specifically alleged that they were “entitled to access”
the video “under OPRA” and that the “BWC footage [was] not exempt from
access under OPRA.” According to plaintiffs, there was “no reasonable
expectation of privacy that would warrant withholding a copy of the video”
because “Mr. Fuster is the subject of the video and thus knows all of the
information contained” in it. Plaintiffs demanded release of the footage or, in
the alternative, production of the video for in camera review, as well as
counsel fees and costs.
7 Defendants responded that they were “under an obligation” to protect the
privacy rights of plaintiffs’ son, and that releasing the video would violate the
accused relative’s “reasonable expectation of privacy.” They requested
dismissal of the complaint, appointment of an attorney to represent plaintiffs’
son, and notification of the accused family members so that they could be
represented in court, as well as fees and costs.
In a written opinion and order, the trial court entered judgment in favor
of defendants. At the outset, the court held that the body worn camera footage
was a “government record” under OPRA and was not exempt from disclosure
as a “criminal investigatory record” because it was “required by law to be
created or maintained” pursuant to the 2020 BWCL, citing N.J.S.A. 47:1A-1,
47:1A-1.1, and 40A:14-118.5. The court also concluded that Fuster was the
“subject” of the body worn camera footage under N.J.S.A. 40A:14-118.5(a)
and (j)(2)(e) and therefore had standing to bring a claim under OPRA. The
court additionally held that “an alleged violation of subsection (l) of [the]
body-worn camera law, N.J.S.A. 40A:14-118.5, may give rise to a cause of
action under OPRA.”
The court concluded, however, that “defendants properly denied
plaintiffs’ OPRA requests pursuant to N.J.S.A. 47:1A-9(b),” which states that
OPRA “shall not abrogate or erode any . . . grant of confidentiality heretofore
8 established or recognized by . . . judicial case law.” Relying on the Appellate
Division’s decision in North Jersey Media Group Inc. v. Bergen County
Prosecutor’s Office (BCPO), 447 N.J. Super. 182, 203-04 (App. Div. 2016),
the trial court explained that “information received or maintained by law
enforcement agencies regarding a person who has not been arrested or charged
with an offense,” was “confidential and protected under common law.” The
court quoted BCPO’s rationale that confidentiality for investigatory records
related to a person who has not been charged “promotes both the integrity and
effectiveness of law enforcement efforts” and “protects the privacy interest of
the [uncharged] individual who, lacking an opportunity to challenge
allegations in court, would face irremediable public condemnation.” (quoting
id. at 204). It held that defendants properly refused to release the body worn
camera footage pursuant to N.J.S.A. 47:1A-9(b) because the accused relative
was never charged.
The trial court rejected plaintiffs’ common law claim, holding that
plaintiffs had not shown that the public’s interest in disclosure outweighed the
government’s interest in confidentiality because “the BWC footage is highly
sensitive in nature, and the accused third party was never charged.”
9 C.
Plaintiffs appealed. The Appellate Division affirmed in a published
opinion. Fuster, 477 N.J. Super. at 498.
The appellate court first held that the “exemptions listed in N.J.S.A.
40A:14-118.5(l) are in addition to OPRA’s exemptions” because the “plain
language of the BWCL’s inspection provision, N.J.S.A. 40A:14-118.5(k),
provides that a review of a video is subject to OPRA.” Id. at 491.
The court then concluded that defendants properly withheld the video
under N.J.S.A. 47:1A-9(b) because “the video was exempt from disclosure
under judicial case law,” id. at 491, i.e., “the well-established confidentiality
exemption protecting an uncharged person’s law enforcement records from
disclosure,” id. at 493. Acknowledging that this confidentiality exemption was
not found “‘within the four corners of OPRA’” or “within the purview of the
BWCL,” id. at 491 (quoting BCPO, 447 N.J. Super. at 201), the Appellate
Division nonetheless concluded that applying “the confidentiality exemption is
appropriate here,” id. at 493.
Lastly, the Appellate Division held that plaintiffs had no common law
right of access because the factors set forth in Loigman v. Kimmelman, 102
N.J. 98, 113 (1986), tipped in favor of non-disclosure. Id. at 495-96.
Notwithstanding plaintiffs’ “strong personal interest” in obtaining the video,
10 providing them access would “impede law enforcement’s investigative
function because [future] witnesses may choose not to come forward.” Id. at
496-97. Release of the video would also harm “an uncharged party [who] has
no opportunity to be informed of the potential disclosure by law enforcement
and thus has no ability to object and be heard.” Id. at 497.
D.
We granted plaintiffs’ petition for certification. 257 N.J. 18 (2024). We
also granted leave to appear as amici curiae to the Attorney General of New
Jersey (Attorney General), the American Civil Liberties Union of New Jersey
(ACLU), Reporters Committee for Freedom of the Press and Seven Media
Organizations (Reporters Committee), and Partners for Women and Justice,
Inc. (Partners).
II.
Plaintiffs argue that the “Legislature made it clear in passing the BWCL
that ‘only’ certain categories of BWC videos ‘shall be exempt from public
inspection.’” (quoting N.J.S.A. 40A:14-118.5(l)). The four exemptions listed
in subsection (l), plaintiffs contend, are exclusive, and all agree that none
apply in this case. This Court must therefore apply the plain language of the
BWCL and order the video to be released, plaintiffs maintain. According to
11 plaintiffs, “[t]o the extent some videos are accessible under the BWCL where
they would otherwise be exempt if OPRA’s ordinary exemptions also applied,
that was a policy decision by the Legislature that this Court must respect.”
Plaintiffs also assert that even if OPRA’s exemptions applied, there is no
“judicial privilege” or “grant of confidentiality” for all “records relating to a
person who is ‘criminally investigated but neither arrested nor charged,’”
contrary to the Appellate Division’s decision. Instead, there is simply “old
jurisprudence concluding that certain law enforcement records were outside”
the scope of OPRA’s predecessor, the Right to Know Law (RTKL), because
they were not required by law to be made, maintained, or kept on file.
Plaintiffs add that, even if such a privilege did exist, it “should not preclude a
victim from obtaining copies of records of their own complaints.”
In support of plaintiffs, the ACLU submits that “[t]he BWC Law sets
forth an exclusive list of situations in which recordings may be withheld.” The
Reporters Committee likewise agrees that “OPRA’s enumerated exemptions do
not apply to the body-worn camera footage sought by” plaintiffs, because
N.J.S.A. 40A:14-118.5(l) “states that ‘only [four types of] body worn camera
recordings shall be exempt from public inspection.’” Partners asserts that “a
victim’s interests in obtaining” footage of their own interview with police “for
use as potential evidence in a future proceeding far outweigh an uncharged
12 individual’s interests in confidentiality and, thus, require disclosure of the
footage to the victim.” Partners also emphasizes that “[v]ictims should be
treated with fairness, compassion, and respect by the criminal justice system.”
Defendants argue “that the exemptions to disclosure enumerated within
the BWCL are not in abrogation of those set forth in OPRA, but rather, are
supplemental to it.” Reading the BWCL exemptions as exclusive, defendants
suggest, “would render meaningless the plain language within the BWCL
which renders that enactment subject to OPRA.” According to defendants,
“[h]ad the Legislature intended to either” preclude the application of OPRA’s
exemptions or “limit OPRA’s application to only . . . procedural requirements,
as [p]laintiffs have argued,” it would have done so expressly.
The Appellate Division therefore correctly applied “the OPRA
exemption found at N.J.S.A. 47:1A-9(b), which excludes from disclosure a
public record deemed privileged or confidential pursuant to established
judicial case law,” defendants contend. According to defendants, “[c]ase law
is beyond clear that our courts do indeed recognize the privacy rights of those
who are investigated for a crime, but are neither arrested nor charged.”
Defendants emphasize this “is not tethered to the common law right of access,
but stands apart as a recognized privacy right.”
13 The Attorney General submits that subsection (l) of the BWCL “makes
clear that BWC footage cannot be withheld as a ‘criminal investigatory
record’” under OPRA, but OPRA’s remaining exemptions continue to apply.
Whereas subsection (k) references OPRA generally, the Attorney General
points out, subsection (l) references only OPRA’s criminal investigatory
record exemption. That the Legislature “chose to vary from the language it
used in subsection (k), and to instead refer only to the [criminal investigatory
record] exemption rather than to OPRA as a whole” in subsection (l), the
Attorney General avers, “shows its intent to clarify the role of one specific
exemption, not abrogate all” OPRA exemptions. If plaintiffs were correct, the
Attorney General continues, body worn camera videos containing, for example
(1) “any portion of” a deceased person’s body; (2) “emergency or security
information or procedures for any buildings or facility”; (3) “victims’
records”; (4) “security measures and surveillance techniques which, if
disclosed, would create a risk to the safety of persons, property, electronic data
or software”; or (5) any person’s “social security number, credit card number,
debit card number, bank account information, [or] month and day of birth”
would need to be released for public inspection despite OPRA’s express
language to the contrary. (quoting N.J.S.A. 47:1A-1.1).
14 III.
We review questions of statutory interpretation de novo. W.S. v.
Hildreth, 252 N.J. 506, 518 (2023). “Likewise, determinations about the
applicability of OPRA and its exemptions are legal conclusions . . . subject to
de novo review.” In re N.J. Firemen’s Ass’n Obligation, 230 N.J. 258, 273-74
(2017) (citations omitted).
When interpreting statutes, “this Court aims to effectuate the
Legislature’s intent.” Hildreth, 252 N.J. at 518. “There is no more persuasive
evidence of legislative intent than the words by which the Legislature
undertook to express its purpose . . . .” Perez v. Zagami, LLC, 218 N.J. 202,
209-10 (2014). We therefore look first “to the plain language of the statute.”
Id. at 210. “We ascribe to the statutory words their ordinary meaning and
significance and read them in context with related provisions so as to give
sense to the legislation as a whole.” DiProspero v. Penn, 183 N.J. 477, 492
(2005) (citation omitted). In doing so, we “strive for an interpretation that
gives effect to all of the statutory provisions and does not render any language
inoperative, superfluous, void or insignificant.” G.S. v. Dep’t of Hum. Servs.,
157 N.J. 161, 172 (1999).
15 “If the plain language of a statute is clear, our task is complete.” Savage
v. Township of Neptune, 257 N.J. 204, 215 (2024). “[I]f there is ambiguity in
the statutory language that leads to more than one plausible interpretation, we
may turn to extrinsic evidence, ‘including legislative history, committee
reports, and contemporaneous construction.’” DiProspero, 183 N.J. at 492-93
(quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).
In the wake of the murder of George Floyd, the Legislature enacted, and
the Governor signed, two bills to require law enforcement officers to wear
body worn cameras, and to regulate the use of those cameras. See A. 4312
(2020); S. 1163 (2020) (together, BWCL).
Pursuant to the new law, “every uniformed State, county, and municipal
patrol law enforcement officer shall wear a body worn camera that
electronically records audio and video while acting in the performance of the
officer’s official duties,” unless a specific exception applies. N.J.S.A. 40A:14-
118.3(a). In addition, the “camera shall be activated whenever the officer is
responding to a call for service or at the initiation of any other law
enforcement or investigative encounter between an officer and a member of
the public,” again unless a delineated exception applies. N.J.S.A. 40A:14-
118.5(c)(1).
16 Police must retain video from the body worn cameras “for not less than
180 days from the date it was recorded” unless an additional retention period
applies. N.J.S.A. 40A:14-118.5(j). One provision requires police to retain a
body worn camera recording
for not less than three years if voluntarily requested by: . . . (e) any member of the public who is a subject of the body worn camera recording; (f) any parent or legal guardian of a minor who is a subject of the body worn camera recording; or (g) a deceased subject’s next of kin . . . .
[N.J.S.A. 40A:14-118.5(j)(2)(e) to (g).]
The “‘[s]ubject of the video footage’ means any . . . suspect, victim, detainee,
conversant, injured party, or other similarly situated person who appears on the
body worn camera recording, and shall not include a person who only
incidentally appears on the recording.” N.J.S.A. 40A:14-118.5(a).
Thus, as relevant to this case, the subject of a body worn camera
recording may request that police retain the footage for three years. So that
the subject can make an informed decision regarding whether to request that
longer retention period, the BWCL grants them special access to review the
video. Specifically, N.J.S.A. 40A:14-118.5(k) provides:
To effectuate subparagraphs (e), (f), and (g) of paragraph (2) of subsection j. of this section, the member of the public, parent or legal guardian, or next of kin or designee shall be permitted to review the body 17 worn camera recording in accordance with the provisions of [N.J.S.A. 47:1A-1 to -13, i.e., OPRA] to determine whether to request a three-year retention period.
Fuster is a “member of the public who is a subject of the body worn
camera recording” under subsection (j)(2)(e), because he is a “conversant”
who “appears on the body worn camera recording” more than “incidentally,”
under subsection (a). Subsection (k) therefore granted him the right to “review
the body worn camera recording . . . to determine whether to request a three-
year retention period.” N.J.S.A. 40A:14-118.5(k).
However, after requesting to review the body worn camera video and
being denied that right, on September 16, 2022, Fuster formally requested that
police retain the video for three years. He is therefore not now entitled to
review the video “to determine whether to request” a three-year retention
period that he has already requested.
We agree with the Attorney General that the plain language of
subsection (k) does not grant “a right for the subject to review the recording
for any purpose at any time.” Instead, it grants the subject of a body worn
camera video a right to review the video during a specific time, and for a
specific purpose: before the subject has requested a three-year retention
18 period, for the purpose of making an informed decision about whether to
request that additional retention period.
Under subsection (k), defendants erred in refusing to permit Fuster to
review the video “to determine whether to request a three-year retention
period.” However, because he went ahead and requested the extended
retention period anyway, subsection (k) no longer grants Fuster the right to
review the video.
And subsection (k) never provided such a right to Devine, as she is
neither a subject of the recording nor one of the other specified persons
entitled to review under that provision. 2 Subsection (k) therefore does not help
plaintiffs in this case.
We next turn to subsection (l). It states:
Notwithstanding that a criminal investigatory record does not constitute a government record under [N.J.S.A. 47:1A-1.1, OPRA’s definitions section], only the following body worn camera recordings shall be exempt from public inspection:
(1) body worn camera recordings not subject to a minimum three-year retention period or
2 Devine argued her child was “the subject being spoken about in the video,” perhaps attempting to invoke the special access provided to the “parent or legal guardian of a minor who is a subject of the body worn camera recording” pursuant to N.J.S.A. 40A:14-118.5(j)(2)(f) and N.J.S.A. 40A-14-118.5(k). But here, plaintiffs’ minor child is not the “subject of the body worn camera recording” because he does not “appear[]” on the recording. N.J.S.A. 40A:14- 118.5(a). 19 additional retention requirements pursuant to subsection j. of this section;
(2) body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to paragraph (1) of subsection j. of this section if the subject of the body worn camera recording making the complaint requests the body worn camera recording not be made available to the public;
(3) body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (a), (b), (c), or (d) of paragraph (2) of subsection j. of this section; and
(4) body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (e), (f), or (g) of paragraph (2) of subsection j. of this section if a member, parent or legal guardian, or next of kin or designee requests the body worn camera recording not be made available to the public.
[N.J.S.A. 40A:14-118.5(l).]
All agree that none of these four exemptions apply in this case. The first
exemption does not apply because the body worn camera video became subject
to the three-year retention period in subsection (j)(2)(e) when Fuster requested
that police retain it for three years. The second and third exemptions are
irrelevant because the required three-year retention period is pursuant to
subsection (j)(2)(e), not subsection (j)(1) or subsections (j)(2)(a), (b), (c), or
20 (d). And the fourth exemption does not apply because Fuster did not request
that the recording not be made available.
Plaintiffs argue that because none of the four exemptions apply, they are
entitled to the video under subsection (l), without reference to OPRA’s
separate exemptions from disclosure. Their position has some appeal.
Plaintiffs rely on the language “only the following body worn camera
recordings shall be exempt from public inspection,” which precedes the four
listed exemptions. Plaintiffs are correct that the ordinary meaning of the word
“only” is “a single fact or instance and nothing more or different”; “solely”;
“exclusively.” Merriam-Webster’s New Collegiate Dictionary 867 (11th ed.
2020). That phrase therefore most naturally suggests that the four exemptions
enumerated in subsection (l) are the sole and exclusive types of “body worn
camera recordings” that “shall be exempt from public inspection.”
But despite the Legislature’s use of the word “only,” it is not clear that
the Legislature meant for the four exemptions delineated in subsection (l) to be
the only types of body worn camera video not available for public inspection
without regard to OPRA’s separately enumerated exemptions. First, the
Legislature repeatedly referenced OPRA in the BWCL. As earlier noted,
subsection (k) specifically notes that review of a body worn camera video
21 under the BWCL “shall be permitted . . . in accordance with the provisions of
[N.J.S.A. 47:1A-1 to -13],” i.e., OPRA.
Second, the language that plaintiffs point to in subsection (l) is preceded
by the words “[n]otwithstanding that a criminal investigatory record does not
constitute a government record under [N.J.S.A. 47:1A-1.1],” i.e., OPRA’s
definitions section. Had the Legislature intended for the BWCL as a whole, or
subsection (l) alone, to stand apart from OPRA, it is not clear why the
Legislature would have included a reference to OPRA in the text of this
subsection. In other words, if the Legislature meant for the BWCL to displace,
rather than complement, OPRA when it comes to body worn camera videos,
why did the Legislature include the “notwithstanding” clause at all?
The Attorney General argues that the “notwithstanding” clause is there
to clarify that body worn camera videos do not fall within OPRA’s exemption
for criminal investigatory records. But that is clear from the plain text of
OPRA and the BWCL even without the clause. As earlier noted, the BWCL
requires that body worn cameras be worn and activated to electronically record
audio and video absent limited exceptions. N.J.S.A. 40A:14-118.3(a), -
118.5(c)(1). And it specifies detailed retention requirements. N.J.S.A.
40A:14-118.5(j). Body worn camera recordings are therefore required by law,
i.e., the BWCL, to be made, maintained, and kept.
22 They thus cannot fall within OPRA’s exemption for a “criminal
investigatory record,” regardless of the notwithstanding clause. Under
OPRA’s definitions section, “a government record shall not include the
following information which is deemed to be confidential for the purposes of
[OPRA]: . . . criminal investigatory records.” N.J.S.A. 47:1A-1.1. OPRA
then defines a criminal investigatory record as “a record which is not required
by law to be made, maintained or kept on file that is held by a law enforcement
agency which pertains to any criminal investigation or related civil
enforcement proceeding.” Ibid. (emphasis added). Even if body worn camera
videos are held by law enforcement agencies and pertain to criminal
investigations, they are by definition not criminal investigatory records under
OPRA because they are “required by law” -- i.e., the BWCL -- “to be made,
maintained or kept on file.” Ibid. 3 We thus do not agree with the Attorney
3 The legislative history reveals possible confusion regarding this Court’s holdings in North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), and Paff v. Ocean County Prosecutor’s Office, 235 N.J. 1 (2018), both of which were decided a few years before the BWCL was enacted. In Lyndhurst, this Court held that police dash-camera footage fell within OPRA’s exemption for criminal investigatory records because at the time it was not “required by law” to be made. 229 N.J. at 567-69. In Paff, we held that a recording made by a police officer’s “Mobile Video Recording Equipment” was likewise exempt as a criminal investigatory record because it was not “required by law” to be made or kept at the time. 235 N.J. at 20-22; see also Sponsor’s Statement to A. 4312 7 (L. 2020, c. 129) (“The bill also specifies when video footage from a body camera is exempt from the State’s
23 General that subsection (l) as a whole makes clear that body worn camera
footage cannot be withheld as a criminal investigatory record under OPRA but
can be withheld under OPRA’s remaining exemptions.
Yet we are left with the BWCL’s repeated references to OPRA, which
seem inconsistent with a legislative intent for the BWCL to altogether
C.
We need not decide whether subsection (l) of the BWCL abrogates
OPRA’s exemptions because there is no OPRA exemption that supports
defendants’ refusal to release the video in this case. We therefore reverse the
Appellate Division’s judgment.
OPRA provides that “government records shall be readily accessible for
inspection, copying, or examination by the citizens of this State, with certain
exceptions.” N.J.S.A. 47:1A-1. None of the exemptions from disclosure
enumerated in N.J.S.A. 47:1A-1.1 -- encompassing, as the Attorney General
points out, footage of “any portion of the body[] of a deceased person,”
open public records act. Recent case law has held that police video recordings are exempt from public disclosure under the State’s open public records act because they pertain to criminal investigations. Notwithstanding this law, the bill specifies that video footage from a body worn camera is not subject to public inspection only when [one of the four exemptions in subsection (l) applies].” (emphasis added)). 24 “victims’ records,” “trade secrets and proprietary commercial or financial
information,” “[building] emergency or security information or procedures,”
etc. -- apply to the footage at issue here. Defendants therefore seek to exempt
this footage from disclosure under two other provisions of OPRA: N.J.S.A.
47:1A-9(b) and N.J.S.A. 47:1A-1. Neither is availing.
1.
N.J.S.A. 47:1A-9(b) states:
The provisions of this act . . . shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.
Defendants assert, and the trial court and Appellate Division held, that a
“‘grant of confidentiality heretofore established or recognized by . . . judicial
case law . . . restrict[s] public access to’” the video in this case: namely, the
“long-established confidentiality exemption” protecting “information received
by law enforcement regarding an individual who was not arrested or charged.”
Fuster, 477 N.J. Super. at 483, 489 (quoting N.J.S.A. 47:1A-9(b)).
The trial court and Appellate Division rooted that exemption in BCPO,
447 N.J. Super. 182. BCPO held, in what it referred to as a “matter of first
impression,” that “records relating to a person who has not been arrested or
25 charged with an offense are entitled to confidentiality based upon long-
established judicial precedent.” Id. at 189. “Therefore, pursuant to N.J.S.A.
47:1A-9(b), an exemption exists under OPRA” that allows a prosecutor to
“neither confirm nor deny” (otherwise known as a “Glomar response”), the
existence of records “regarding a person who was not charged with any
crime.” Id. at 188-89, 196.
OPRA became effective on July 7, 2002. See L. 2001, c. 404. The
Appellate Division therefore could not, in 2016, create a new “grant of
confidentiality” under N.J.S.A. 47:1A-9(b); it was limited to grants of
confidentiality “heretofore established or recognized by . . . judicial case law”
-- i.e., grants of confidentiality that had already been “established or
recognized” before OPRA’s enactment.
According to BCPO, “before OPRA was enacted, judicial decisions
recognized the need to maintain ‘a high degree of confidentiality’ for records
regarding a person who has not been arrested or charged.” 447 N.J. Super. at
203-04. For support, BCPO cited three decisions from this Court: Nero v.
Hyland, 76 N.J. 213 (1978), State v. Marshall, 148 N.J. 89 (1997), and
Loigman, 102 N.J. 98. None create any automatic grant of confidentiality for
all law enforcement records related to a person not arrested or charged with a
crime.
26 In Nero, Governor Byrne had considered, and then decided against,
appointing John Nero to a position on the New Jersey Lottery Commission. 76
N.J. at 216-17. Nero sued to get access to the character investigation prepared
by the State Police. Id. at 217 & n.1. We held “that character investigations
made at the behest of the Governor as chief executive in connection with a
contemplated nomination are not public records under the Right to Know Law,
N.J.S.A. 47:1A-2, since they are not ‘required by law to be made, maintained
or kept on file.’” Id. at 220 (quoting the RTKL, formerly codified at N.J.S.A.
47:1A-2). We also denied Nero access under the common law, relying on the
“executive privilege” that “protects and insulates the sensitive decisional and
consultative responsibilities of the Governor” in the appointment process. Id.
at 225-26.
In Marshall, a criminal defendant who had been convicted of murder-by-
hire “moved to inspect the State’s entire file” as part of his petition for post-
conviction relief. 148 N.J. at 138, 268. This Court held that “[t]he Right-to-
Know Law does not provide defendant with the right to inspect the law-
enforcement files sought in this case because no law or regulation requires that
such files ‘be made, maintained or kept.’” Id. at 272-73 (quoting the RTKL,
N.J.S.A. 47:1A-2). The Court also denied access under the common law,
holding “that the common-law right to inspect public documents may not be
27 invoked in a pending criminal case by a defendant seeking discovery rights
beyond those granted” by the Court Rules. Id. at 274.
In Loigman, an attorney sued to obtain a copy of the Attorney General’s
audit of various monetary disbursements made by the Monmouth County
Prosecutor. 102 N.J. at 101. This Court did not disturb the Appellate
Division’s determination that the audit was not a public record under the
RTKL because it was not “required by law to be made, maintained, or kept on
file.” Id. at 102-03. In assessing whether the attorney was entitled to inspect
the audit under the common law, this Court rejected the Attorney General’s
assertion that Nero “sustain[ed] an absolute privilege of secrecy for all such
investigatory materials.” Id. at 103-04. Instead, this Court summarized Nero
as holding only “that a State Police character investigation of an applicant for
a public position is so sensitive that disclosing the materials to the very
individual whose qualifications were being canvassed would chill the
investigative process.” Id. at 104.
The Loigman Court reiterated that under the common law, “there [is] no
fixed rule for determining whether disclosure is appropriate.” Ibid. Instead, a
court must “balance, in each case, the individual’s right to the information
against the public interest in the confidentiality of the file.” Ibid. The Court
then set forth factors that a trial court may consider during this “exquisite
28 weighing process.” Id. at 108 (quoting Beck v. Bluestein, 194 N.J. Super. 247,
263 (App. Div. 1984)). Those include:
(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual’s asserted need for the materials.
[Id. at 113.]
As is clear from that summary, none of these cases “establish[]” any
broad “grant of confidentiality” for records related to a person who has been
investigated but not arrested or charged with a crime that would then not be
“abrogate[d] or erode[d]” by OPRA in 2002. N.J.S.A. 47:1A-9(b). Indeed,
they do not create any absolute grant of confidentiality at all.
In all three cases, the Court’s holdings under OPRA’s predecessor, the
RTKL, began and ended with the finding that the records were “not public
records” because they were not “required by law to be made, maintained, or
29 kept on file.’” Nero, 76 N.J. at 220; accord Marshall, 148 N.J. at 272-73;
Loigman, 102 N.J. at 102-03. Here, as we have already explained, the
withheld body worn camera footage was, without dispute, “required by law to
be made, maintained or kept on file,” N.J.S.A. 47:1A-1.1, and falls
comfortably within OPRA’s definition of a government record.
As to the common law, we based our holding in Nero on the “executive
privilege” that “protects and insulates” the Governor’s appointment process.
76 N.J. at 225-26. Marshall held that criminal defendants could not use the
common law to obtain documents they would not otherwise be entitled to
access under the Court’s discovery rules. 148 N.J. at 274. And in Loigman,
we did not make any final determination as to the Attorney General’s audit; we
simply set forth the factors that a court should consider in undertaking the
“delicate weighing process in the sensitive area of executive privilege.” 102
N.J. at 108.
We therefore hold that before OPRA was enacted, judicial case law in
this State had not established or recognized any automatic grant of
confidentiality for all law enforcement records related to a person not arrested
or charged with an offense. There was therefore nothing in this regard for
OPRA to not “abrogate or erode” under N.J.S.A. 47:1A-9(b) when it came into
effect. The Appellate Division erred in holding otherwise.
30 2.
Nor does the protection of a “citizen’s reasonable expectation of
privacy,” N.J.S.A 47:1A-1, justify withholding the video under OPRA.
OPRA’s legislative findings and declarations provide:
[G]overnment records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . . [A] public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy . . . .
[Ibid.]
When assessing a claim from a public agency that disclosure of “a
citizen’s personal information with which it has been entrusted . . . would
violate the citizen’s reasonable expectation of privacy,” our Court considers
the following factors:
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
31 [Burnett v. County of Bergen, 198 N.J. 408, 427 (2009) (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995)).]
Applying the language in N.J.S.A 47:1A-1 and the Doe factors, we have
previously required the redaction of social security numbers from land title
records prior to their release to a commercial business, id. at 428, 437; denied
public access to financial relief checks issued by the New Jersey Firemen’s
Association to one of its members, Firemen’s Ass’n Obligation, 230 N.J. at
266, 279-80; and remanded to the trial court to redact from the requested
report “at a minimum . . . the names of [internal affairs] complainants,
witnesses, informants, and cooperators . . . ; non-public, personal identifying
information . . . such as . . . home addresses and phone numbers; and [other]
personal information that would violate a person’s reasonable expectation of
privacy if disclosed, such as medical information,” Rivera v. Union Cnty.
Prosecutor’s Off., 250 N.J. 124, 150 (2022).
We have refused to allow the withholding of a settlement agreement
between Monmouth County and an employee who filed a public lawsuit
claiming sex discrimination, Asbury Park Press v. County of Monmouth, 201
N.J. 5, 7 (2010); names and addresses of dog owners contained in dog license
records, Bozzi v. City of Jersey City, 248 N.J. 274, 286-87 (2021); names and
addresses of successful bidders at a public auction of seized property forfeited
to the government, Brennan v. Bergen Cnty. Prosecutor’s Off., 233 N.J. 330, 32 333, 342 (2018); and footage from a police vehicle’s mobile video recorder
depicting a driver’s arrest in a public place, Paff v. Ocean Cnty. Prosecutor’s
Off., 235 N.J. 1, 8-9, 27 (2018).
The trial court held that the body worn camera footage “was not properly
withheld pursuant to OPRA’s general privacy provision” because the footage
“consists entirely of information about third parties that did not ‘originate’
with those individuals and was not ‘entrusted’ by them to the government, but
rather was supplied directly to the police by Fuster.” We have never expressly
considered whether, under N.J.S.A. 47:1A-1, a public agency can withhold a
government record to “safeguard” the “reasonable expectation of privacy” of a
person who did not “entrust[]” the public agency with their “personal
information.” We need not reach the question here, because even if N.J.S.A.
47:1A-1 could be read to apply in such a circumstance, we find that under the
specific facts of this case, defendants’ withholding of the body worn camera
recording simply does not protect any significant privacy interest.
Recall that here, the party seeking access to the body worn camera video
is not a third party but the subject of the video. And the withheld footage,
required by law to be made, is not a recording of the State’s investigation, but
a verbatim recording of Fuster’s own complaint as he made it to the police
(Doe factors one and two). In addition, defendants have already released
33 details of their investigation to Fuster. In terms of the privacy interests of the
adult male relative, if Fuster wished to publicize the allegations, he could film
himself making them again and broadcast the video on social media or to news
sites (factors three and five).
Disclosing a body worn camera recording to an alleged victim who
comes forward and speaks to police and then requests the recording of their
own statement would also not discourage alleged victims from providing
information to law enforcement. Instead, as Partners and plaintiffs point out, it
is treating victims as though they were perpetrators that can make victims
unwilling to report incidents to police (factor four). In this case, plaintiffs
seek to inspect the video to advocate for their child and possibly file an
internal affairs report (factor six). In other cases, a crime victim may seek a
copy of their own body-worn-camera-recorded statement to pursue
applications for protections under the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35, or the Victim’s Assistance and Survivor Protection
Act, N.J.S.A. 2C:14-13 to -21 (factor six). Finally, under our State
Constitution, “[a] victim of a crime shall be treated with fairness, compassion
and respect by the criminal justice system.” N.J. Const. art. I, ¶ 22.
Prohibiting an alleged crime victim from inspecting the body worn camera
34 recording of their own police statement does not honor that mandate (factor
seven).
We therefore hold that defendants are not entitled to withhold the video
under N.J.S.A. 47:1A-1.
We do not address whether any redactions to body worn camera
recordings may be appropriate, as defendants did not request any redactions to
the video in this case. We also do not reach plaintiffs’ common law claim
because we hold they are entitled to access the body worn camera footage
under OPRA.
IV.
For the reasons stated, we reverse the Appellate Division’s judgment and
order the body worn camera footage released to plaintiffs for inspection.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FASCIALE, and NORIEGA join in JUSTICE WAINER APTER’s opinion. JUSTICE PIERRE- LOUIS did not participate.