John Paff v. Ocean County Prosecutor's Office

141 A.3d 300, 446 N.J. Super. 163, 2016 N.J. Super. LEXIS 92

• Court: New Jersey Superior Court Appellate Division
• Decided: June 30, 2016
• Docket: A-4226-14T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4226-14T3

JOHN PAFF, APPROVED FOR PUBLICATION Plaintiff-Respondent, June 30, 2016

v. APPELLATE DIVISION

OCEAN COUNTY PROSECUTOR'S OFFICE,

Defendant-Appellant. _____________________________________

Argued February 3, 2016 – Decided June 30, 2016

Before Judges Fuentes, Kennedy, and Gilson (Judge Gilson dissenting).

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1645-14.

Samuel Marzarella, Supervising Assistant Prosecutor, argued the cause for appellant (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Marzarella and Nicholas D. Norcia, Assistant Prosecutor, on the brief).

Richard M. Gutman argued the cause for respondent.

Annmarie Cozzi, Bergen County Senior Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Sean F. Dalton, President, attorney; Ms. Cozzi, of counsel and on the brief).

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

Ian C. Kennedy, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Mr. Kennedy, of counsel and on the brief).

The opinion of the court was delivered by

KENNEDY, J.A.D.

This appeal concerns the public's right to access

recordings from the mobile video recorders (MVRs) in police

vehicles under the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13, and the common law. Plaintiff, John Paff, filed

a verified complaint and an order to show cause seeking MVR

recordings of an incident involving a Tuckerton Borough police

officer's arrest of a driver for eluding and motor vehicle

offenses. Judge Vincent Grasso ordered the recordings to be

disclosed pursuant to OPRA, holding that they were government

records, which were neither exempt as a "criminal investigatory

record," N.J.S.A. 47:1A-1.1, nor excepted as part of an

"investigation in progress," N.J.S.A. 47:1A-3(a). He also held

that the driver's "expectation of privacy" did not justify

withholding the recordings and, later, entered an order awarding

plaintiff counsel fees and costs.

2 A-4226-14T3 Defendant, Ocean County Prosecutor's Office (OCPO), and

amici, the New Jersey Attorney General (Attorney General) and

the County Prosecutors Association of New Jersey (Prosecutors

Association), urge reversal. Amicus American Civil Liberties

Union of New Jersey (ACLU) joins with plaintiff in arguing for

an affirmance. Having reviewed the record and applicable law,

we affirm.

I.

The facts that follow are drawn from the limited record

developed before the Law Division on the order to show cause,

which consists of various certifications submitted by the

parties. The MVR recordings were made by dashboard cameras on

Barnegat Township police vehicles during a motor vehicle stop on

January 29, 2014.

On that date, a Tuckerton Borough police officer patrolling

in a marked vehicle activated his overhead lights to effectuate

a motor vehicle stop. The driver, however, did not stop and a

motor vehicle chase ensued. As the vehicle headed toward

Barnegat Township, police there were alerted. Two Barnegat

Township police vehicles joined the chase, with their MVRs

recording the fleeing vehicle, its subsequent stop in a

municipal parking lot in Barnegat Township, and the driver's

arrest. The MVRs of the two Barnegat police vehicles captured

3 A-4226-14T3 audio and video of the Tuckerton police officer and his police

dog during the arrest of the driver.

Following her arrest, the driver was charged with eluding,

N.J.S.A. 2C:29-2(b), resisting arrest, N.J.S.A. 2C:29-2(a), and

various motor vehicle offenses. The Tuckerton police officer

who initiated the stop was later the subject of an internal

affairs investigation, and he was charged in April 2014 with

second-degree official misconduct, N.J.S.A. 2C:30-2, third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and other

offenses arising from his use of the police dog during the

arrest. In January 2015, an Ocean County grand jury returned an

indictment against the officer.

The incident was the subject of news reports, and, on May

20, 2014, plaintiff, a New Jersey resident who operates a

website focused on public affairs, sent written requests to the

OCPO and Barnegat Township for copies of "the video of this

incident" and any summonses issued to the driver. Plaintiff

cited both OPRA and the common law as authority for his

requests.

The OCPO denied plaintiff's requests in a letter dated May

28, 2014, asserting that the records were exempt as part of a

"criminal investigation in progress" and "an internal affairs

matter." Later, however, that office gave plaintiff copies of

4 A-4226-14T3 the criminal complaint and motor vehicle summonses issued to the

driver, but declined to release the MVR recordings, citing the

"active criminal investigation" exemption.

Plaintiff filed a verified complaint and an order to show

cause seeking the MVR recordings under OPRA and the common law.

Thereafter, the parties submitted briefs and certifications

supporting their positions with respect to the release of the

MVR recordings. The driver, who was not a party to the action,

wrote to the OCPO objecting to the release of the recordings,

citing privacy concerns.

In a certification dated July 1, 2014, John Halliday, a

detective with the OCPO, stated that the MVR recordings "pertain

to two ongoing, active criminal investigations – that of the

police officer involved, as well as the victim who eluded

police." He added that both the OCPO and the Tuckerton Borough

Police Department are conducting "separate internal affairs

investigations" arising from the events of January 29, 2014.

Halliday further stated in a second certification dated

September 2, 2014, that "while not every police department" in

the State uses MVRs, "when these videos are produced they are

the work product of the police officer who operates the dash

cam." This statement was followed by an assertion that

disclosure of the video recordings would "compromise ongoing

5 A-4226-14T3 criminal and internal affairs investigations and jeopardize any

further developments in these investigations."

Jeffrey Ryan, a sergeant in the Barnegat Township Police

Department, also submitted a certification, in which he

identified himself as the individual responsible for "training

officers in the use of [MVR] equipment." He supplied a copy of

the "general order" governing the use of MVRs first issued by

the Barnegat Police Chief in March 2008 and revised on January

9, 2014. Therein, the chief announced that:

It is the policy of this agency to use mobile video recorders in order to protect the members of this agency and to record information related to motorist contacts and other patrol related activities. In addition, the equipment will provide valuable instructional material to be used in in-service training. While evidence may be captured on the recordings, the use of video and audio recording equipment by members of the patrol division in the performance of their duties is not intended as a device to document all evidentiary material relative to future court proceedings. Any evidence obtained is a by- product of the primary purpose for the installation of mobile video recording equipment.

. . . .

The 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. Whenever the video recording has been activated officers shall ensure that the audio portion is also activated.

6 A-4226-14T3 Section I of the general order sets forth the "pre-

operational procedure" for the use of MVRs in patrol vehicles

required in Barnegat Township, and it explicitly provides,

"[a]ll officers assigned to the patrol division shall receive

training in the use and operation of the MVR."

Section II of the order explains in detail the procedures

required for using the MVRs, and subsections B and C set forth

the circumstances in which recordings are mandatory. Because

both of these subsections are pertinent to our opinion, we quote

them both at length herein:

B. Recording Incidents.

The 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. Whenever the video recording has been activated officers shall ensure that the audio portion is also activated.

Whenever the emergency lights are activated officers shall not deactivate the recording function of the MVR equipment except for dismounted posts or traffic details.

An officer may manually activate the system at his/her discretion. This allows a recording to be made without alerting a potential violator as a result of activating the emergency lights.

When the recording function is activated to document any incident or MV stop, the unit will not be deactivated until such time as the incident has been completed

7 A-4226-14T3 or the detained vehicle has been released and the officer has called back in service.

When a recording function has documented an event that is a major criminal incident involving serious injury, loss of life, or catastrophic property damage, neither the officer(s) involved, nor the personnel recording the incident will deactivate the MVR. Investigative Division personnel or a Division Commander will deactivate the MVR only when the event has ceased.

When a recording function has documented a police involved shooting or use of force by an officer(s) that results in the serious bodily injury or death of another person, the MVR will only be deactivated at the direction of the officer in charge of Professional Standards. Such deactivation approval will be documented in the CAD incident log.

Notwithstanding any other provision of this order, when an officer is involved in a major criminal incident, is present at a major crime scene, or both, a supervisor may authorize the deactivation of the audio portion of the MVR only when and if the supervisor determines that the incident has ceased and that it is no longer necessary to properly document the incident.

When an officer is requested to provide information regarding an event that has been captured on MVR equipment, the officer shall be made aware of the existence of the MVR and shall be given an opportunity to review the recording prior to any statements.

C. Types of Incidents to Record– Officers using MVR equipped vehicles shall record the following situations:

8 A-4226-14T3 All traffic stops, criminal enforcement stops, motorist aid situations, motor vehicle collisions, and pedestrian contacts in their entirety.

The MVR will be activated prior to the initiation of the stop or detention and prior to the officer contacting communications to advise of the stop or detention, unless it is unsafe or impracticable.

If an officer fails to activate the MVR prior to the contact, the reason will be indicated in detail in the associated CFS entry.

Whenever standardized field sobriety tests are conducted during a motor vehicle stop, the officer should when practicable adjust the MVR so as to allow for a visual record of the tests.

At no time should the standardized field sobriety tests be conducted in the area immediately in front of the patrol vehicle.

Police pursuits as defined by department policy.

Major crime scenes.

Situations which arise wherein the officer by reason of training or experience determines that the incident should be recorded.

Any special operation that should be documented.

The order also establishes review procedures for MVR recordings

and, essentially, provides that recordings may be reviewed to

9 A-4226-14T3 assess the performance of the officer, his need for further

training, or his satisfactory performance of his duties.

As Sergeant Ryan set forth in his certification, the

"recording" function of the MVR in a patrol vehicle is

"automatically initiated when the patrol vehicle's lights are

activated." Also, when an MVR has recorded the "use of force by

an officer that results in the serious bodily injury or death of

another person," it shall "only be deactivated at the direction

of the officer in charge of Professional Standards."

Following oral argument, Judge Grasso issued written

opinions on July 31 and October 2, 2014. In his July 31

opinion, the judge concluded that the MVR recordings were

government records, but, at that point in the proceeding, the

OCPO had failed to carry its burden to produce specific,

reliable evidence establishing that the recordings were exempt

from disclosure as "criminal investigatory records" under

N.J.S.A. 47:1A-1.1. See Courier News v. Hunterdon Cty.

Prosecutor's Office, 358 N.J. Super. 373, 382–83 (App. Div.

2003).

Moreover, Judge Grasso held that the recordings were not

exempt from disclosure as pertaining to an "investigation in

progress," N.J.S.A. 47:1A-3(a), because any investigations of

the driver of the vehicle or the officer "began after the video

10 A-4226-14T3 was made." The judge explained that under the specific terms of

N.J.S.A. 47:1A-3(a), "the ongoing investigation exception does

not work retroactively to render public documents confidential

once an investigation begins." He then held that the traffic

stop, having been made at 11:00 a.m. in a public parking lot,

did not entitle the driver to a "reasonable expectation of

privacy in the video."

Judge Grasso concluded his opinion by adjourning the case

until September 2014 to permit the OCPO to submit "supplemental

briefs, certifications and evidence" on whether the MVR

recordings were exempt under N.J.S.A. 47:1A-1.1 as a "criminal

investigatory record."

On October 2, 2014, Judge Grasso issued his second opinion,

following receipt of additional briefs and certifications from

the parties, as well as conducting an in camera review of the

MVR recordings. In that opinion, he decided that because the

Barnegat Police Chief had issued a standing order requiring the

use of MVRs during motor vehicle stops, and at such times as the

patrol officers had activated their overhead lights, the

recordings were required by law to be made and maintained and,

thus, were not "criminal investigatory records" as defined under

N.J.S.A. 47:1A-1.1.

11 A-4226-14T3 Citing O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371,

383–84 (App. Div. 2009), Judge Grasso determined that the

"binding and enforceable" nature of the general order issued by

the Barnegat Police Chief, carried with it the "force of law"

for the making and maintaining of MVR recordings in municipal

patrol vehicles. He explained that the general order had been

issued in accordance with the delegation of power provided by

the Legislature under N.J.S.A 40A:14-118.

Further, Judge Grasso rejected the argument that the

Attorney General's Guidelines on Internal Affairs Policies and

Procedures exempted the recordings from disclosure, reasoning

that the recordings were made before and not as part of the

internal affairs investigation. After reviewing the MVR

recordings in camera, he also determined that the driver did not

have a reasonable expectation of privacy that might otherwise

justify withholding public access. The judge explained that the

stop took place in a public area, and the recordings did not

disclose anything of a highly personal nature.

Finally, Judge Grasso found no basis to deny access to the

recordings because the OCPO had not yet released the MVR

recordings as part of its criminal discovery. Because he

determined that the MVR recordings were accessible under OPRA,

12 A-4226-14T3 the judge did not reach the question whether the recordings

would have to be disclosed under the common law.

Subsequently, Judge Grasso entered an order memorializing

his October 2 decision, granting judgment in favor of plaintiff

on his OPRA claim, directing the OCPO to grant access to the MVR

recordings, and dismissing the common law count as moot. After

reviewing a fee application, the judge awarded plaintiff $27,560

in attorney's fees and costs.

This appeal followed.

II.

On appeal, the OCPO makes nine arguments: (1) the OPRA

burden of proof does not apply to the MVR recordings; (2) the

MVR recordings are criminal investigatory records and, thus, not

government records; (3) even if the records are government

records, they are exempt from disclosure under executive orders

issued by Governor Whitman; (4) the records are exempt from

disclosure as an investigation in progress; (5) the records are

exempt as discovery materials; (6) the records are exempt under

privacy provisions of OPRA; (7) the records should not be

disclosed under the common law; (8) plaintiff was not entitled

to an attorney's fee award; and (9) the trial judge committed

error in awarding attorney's fees. The Attorney General and the

13 A-4226-14T3 Prosecutors Association join in arguments two, four, six, and

seven.

A.

We review a trial judge's legal conclusions concerning

access to public records under OPRA de novo. Drinker Biddle &

Reath, LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super.

489, 497 (App. Div. 2011). We will not disturb factual findings

as long as they are supported by adequate, substantial, and

credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc.,

110 N.J. 464, 475 (1988). If a court conducts an in camera

review of documents and engages in a balancing of interests in

connection with a common-law-based request to inspect public

records, we apply a more deferential standard of review.

Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App.

Div.), certif. denied, 133 N.J. 429 (1992). Nevertheless, "to

the extent [the appellate court] can be said to be reviewing

essentially a legal determination, [it] can review the documents

which the trial judge ordered disclosed." Ibid.

New Jersey has traditionally maintained a strong public

policy that "government records shall be readily accessible for

inspection, copying, or examination by the citizens of this

State." N.J.S.A. 47:1A-1. The OPRA statute ensures, with

exceptions, that "all government records shall be subject to

14 A-4226-14T3 public access." Ibid. A person who is denied access to a

government record may challenge the denial in Superior Court.

N.J.S.A. 47:1A-6. In OPRA cases, the records custodian has the

burden to show that its denial of access was authorized by law.

See Asbury Park Press v. Monmouth Cty., 406 N.J. Super. 1, 7

(App. Div. 2009) (citing N.J.S.A. 47:1A-6), aff'd, 201 N.J. 5

(2010).

The threshold question in an OPRA claim is whether the

plaintiff has requested "government records" pursuant to the

statute. O'Shea, supra, 410 N.J. Super. at 380 (citation

omitted). The statute broadly defines a "government record" as:

[A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof . . . .

[N.J.S.A. 47:1A-1.1.]

Clearly, then, the MVR recordings at issue in this case fit

within this broad definition and thus are presumptively "subject

to public access" unless they are expressly exempted from

disclosure.

15 A-4226-14T3 In deciding whether the records in this case are exempt

from disclosure, we first address the burden of proof arguments

raised by the OCPO. We then address the "criminal investigatory

records" exemption, as well as the "investigation in progress"

exception. We concur with Judge Grasso's well-reasoned opinions

rejecting the "criminal investigatory record" exemption set

forth in OPRA, as applied to the facts of this case, as well as

the "investigation in progress" exception, and, therefore, we

affirm the judgment of the Law Division. We also address other

OPRA provisions raised by the OCPO and amici, and we conclude

that they do not apply to the facts herein. Finally, we reject

the remaining arguments on appeal as without sufficient merit to

warrant discussion in a written opinion.

B.

As we noted earlier, "OPRA provides for ready access to

government records by the citizens of this State." Burnett v.

Cty. of Bergen, 198 N.J. 408, 421–22 (2009) (citing Mason v.

City of Hoboken, 196 N.J. 51, 64–65 (2008)). "The purpose of

OPRA is to maximize public knowledge about public affairs in

order to ensure an informed citizenry and to minimize the evils

inherent in a secluded process." Times of Trenton Publ'g Corp.

v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)

(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office,

16 A-4226-14T3 374 N.J. Super. 312, 329 (Law Div. 2004)). Accordingly, OPRA

directs that "all government records shall be subject to public

access unless exempt," and that "any limitations on the right of

access . . . shall be construed in favor of the public's right

of access." N.J.S.A. 47:1A-1. "Consistent with those aims, the

statute broadly defines government records to include documents

made, maintained or kept in the course of official government

business, but exempts twenty-one categories of information from

the definition." Burnett, supra, 198 N.J. at 422 (citing

N.J.S.A. 47:1A-1.1).

OPRA places on the custodian of the records "the burden of

proving that the denial of access is authorized by law."

N.J.S.A. 47:1A-6. Specifically, OPRA states that "[a] person

who is denied access to a government record . . . may:

institute a proceeding to challenge the custodian's decision by

filing an action in Superior Court . . . [and t]he public agency

shall have the burden of proving that the denial of access is

authorized by law." Ibid.

Here, the OCPO argues that when the records fall within a

statutory exemption under OPRA, the public agency must make only

a facial showing, and then the burden shifts to the requester.

We reject this argument because it is inconsistent with the

statute and existing case law.

17 A-4226-14T3 OPRA unequivocally states that "[t]he public agency shall

have the burden of proving that the denial of access is

authorized by law." N.J.S.A. 47:1A-6. Consistent with the

plain language of OPRA, the burden of proof is on the government

entity seeking to deny access. See, e.g., O'Shea, supra, 410

N.J. Super. at 380–81 (acknowledging that the government agency

has the burden even when asserting that the "criminal

investigatory record" exemption applies); Courier News supra,

358 N.J. Super. at 382-83 ("Under OPRA, a public agency seeking

to restrict the public's right of access to government records

must produce specific reliable evidence sufficient to meet a

statutorily recognized basis for confidentiality.").

The OCPO argues that two cases stand for the proposition

that the public agency need only make a facial showing, and that

the burden then shifts to the party seeking access. See Educ.

Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 286–87 (2009), and

Michelson v. Wyatt, 379 N.J. Super. 611, 621 (App. Div. 2005).

However, we find that neither of these cases stand for the

proposition advanced by the OCPO.

In Education Law Center, the Supreme Court discussed a

qualified privilege and explained that after the governmental

agency had carried its burden of proof to establish the

privilege, the requester could make a further showing that might

18 A-4226-14T3 overcome the public agency's assertion of the privilege. Educ.

Law Ctr., supra, 198 N.J. at 287 (discussing the deliberative

process privilege). In Michelson, the plaintiff sought medical

coverage information for every municipal employee, as well as

their claims histories – records, unlike those at issue here,

clearly not subject to OPRA disclosure. Michelson, supra, 379

N.J. Super. at 615; N.J.S.A. 47:1A-10. We held that "when the

requested material appears on its face to encompass

legislatively recognized confidentiality concerns, a court

should presume that the release of the government record is not

in the public interest." Id. at 621 (emphasis added).

Accordingly, we reject the argument advanced by the OCPO.1

C.

The OCPO, the Attorney General, and the Prosecutors

Association argue that the MVR recordings in this case are

excluded from OPRA under the "criminal investigatory record" and

"investigation in progress" exemptions. Plaintiff and the ACLU

contend that the OCPO failed to carry its burden of proving

either of these exclusions, and the MVR recordings are

government records to which the public has a right of access

1 Additionally, the argument, even if it had any basis in the law, begs the question because it assumes that the MVR recordings are clearly exempted from disclosure under OPRA. Obviously, the recordings are not clearly exempt under the statute given our analysis.

19 A-4226-14T3 under OPRA. While these two exclusions overlap as applied to

criminal investigations, they are distinct, and we will evaluate

them separately.

1. The Criminal Investigatory Records Exemption

As we explained above, OPRA broadly defines a government

record to include any document, photograph, or image "made,

maintained or kept" by, among others, a municipality in the

course of its official business. N.J.S.A. 47:1A-1.1. It then

declares, however, that "[a] government record shall not

include" various categories of "information which [are] deemed

to be confidential." Ibid. One such category is a "criminal

investigatory record," defined 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.

Thus, to prove that a record is a criminal investigatory record,

the public agency must show that the record: (1) is not required

by law to be made and (2) pertains to a criminal investigation

or related civil enforcement proceeding. O'Shea, supra, 410

N.J. Super. at 380–81.

We have addressed the "criminal investigatory record"

exemption in two cases that have reached different conclusions

regarding the first element in the definition of a criminal

20 A-4226-14T3 investigatory record; that is, the record "is not required by

law to be made, maintained, or kept . . . by a law enforcement

agency." See N. Jersey Media Grp. v. Twp. of Lyndhurst, 441

N.J. Super. 70, 95–96 (App. Div.), leave to appeal granted, 223

N.J. 553 (2015), and O'Shea, supra, 410 N.J. Super. at 381

(quoting N.J.S.A. 47:1A-1.1). We shall examine these cases to

determine if they are reconcilable, and we will then review the

record in light of our conclusions respecting the scope of this

phrase.

In undertaking this task, we are mindful that "our goal is

to interpret the statute consistent with the intent of the

Legislature." Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,

568 (2008). Applying well-settled rules of statutory

construction, "we give a statute's words and phrases their usual

and ordinary meaning, N.J.S.A. 1:1-1, because the words of a

statute ordinarily provide the most reliable indication of

legislative intent." Cty. of Bergen Emp. Benefit Plan v.

Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 132

(App. Div. 2010). "When the language in a statute is clear and

unambiguous, and susceptible to only one interpretation," we

presume the Legislature meant what it said and that the plain

meaning governs. Burnett, supra, 198 N.J. at 421.

21 A-4226-14T3 We are also guided by the statutory command that OPRA

"shall be construed in favor of the public's right of access."

Fair Share Hous. Ctr., Inc. v. N.J. State League of Municips.,

207 N.J. 489, 501 (2011) (quoting N.J.S.A. 47:1A-1). Where the

statute is unclear, the Court has resolved any ambiguities in a

manner consistent with its broad purpose. Id. at 502; Sussex

Commons Assocs. v. Rutgers, 210 N.J. 531, 540–41 (2012).

We remain mindful that "OPRA's clear purpose . . . is to

maximize public knowledge about public affairs in order to

ensure an informed citizenry and to minimize the evils inherent

in a secluded process." Educ. Law Ctr., supra, 198 N.J. at 284

(citation omitted). "OPRA's promise of accessible public

records enables citizens and the media [to] play a watchful role

in curbing wasteful government spending and guarding against

corruption and misconduct." Sussex Commons, supra, 210 N.J. at

541 (alteration in original) (citation omitted).

In O'Shea, we affirmed the trial court's order requiring

the municipality to provide access to the "use of force reports"

(UFRs) from its police department. O'Shea, supra, 410 N.J.

Super. at 388. We rejected the defendant's argument that the

UFRs were exempt from disclosure as "criminal investigatory

records" under N.J.S.A. 47:1A-1.1, or that they were shielded

from disclosure as records pertaining to "an investigation in

22 A-4226-14T3 progress" by a public agency under N.J.S.A. 47:1A-3(a). Id. at

384–86.

In addition, we found that the Attorney General's Use of

Force Policy requiring the completion of UFRs by local police

departments, issued pursuant to N.J.S.A. 52:17B-98, had the

force of law. Id. at 384. Accordingly, we held that the UFRs

were not criminal investigatory records and were not exempt from

access under OPRA. Id. at 385–86.

In so holding, we rejected the argument that case law

decided under OPRA's predecessor statute, the Right-to-Know Law

(RTKL), L. 1963, c. 73, repealed by OPRA, L. 2001, c. 404,

provided guidance on interpreting OPRA's definition of

government records and exemptions to that definition. Id. at

381. We explained that the RTKL "strictly defined" the phrase,

"required by law," and was repealed expressly because it was

"less encompassing" in allowing public access to records than

the public policy of New Jersey required. Ibid.

Now, OPRA expresses this State's public policy favoring

transparency in government and disclosure of government

documents. N.J.S.A. 47:1A-1. The statute endeavors "to

maximize public knowledge about public affairs." Times of

Trenton, supra, 183 N.J. at 535 (citation omitted).

23 A-4226-14T3 Accordingly, our rejection of the OCPO's arguments was

consistent with both the letter and the purpose of the statute.

In North Jersey Media Group, another panel of the appellate

division rejected O'Shea's position and concluded that "it is

appropriate to interpret the criminal investigatory records

exception in OPRA" by looking at "pre-OPRA case law interpreting

the RTKL's 'required by law' standard in cases involving

requests for records pertaining to criminal investigations." N.

Jersey Media Grp., supra, 441 N.J. Super. at 96 (expressly

disagreeing with that portion of O'Shea that held the RTKL was

inapplicable).

That case involved an OPRA request seeking extensive

records from local, county, and state law enforcement agencies

concerning a fatal police shooting of a criminal suspect. Id.

at 81–82. Among the records sought therein were police MVR

recordings. Ibid. Writing for the court, Judge Ostrer

explained that a record is "required by law to be made" if its

creation is "mandated by a statute, regulation, executive order,

or judicial decision." Id. at 97. Thus, the court held that a

record subject to "a generic record retention policy, or an

internal agency directive of a public official" is not one that

is required to be made by law. Ibid.

24 A-4226-14T3 While there is much in North Jersey Media Group with which

we agree, and we laud Judge Ostrer's impressive exegesis

concerning OPRA's legislative history, we find it unnecessary at

this point to engage in a detailed dissection of the many issues

that the opinion dealt with because we disagree with three of

the conclusions that our colleagues drew from their examination

of the facts and the legislative history of OPRA.

First, we disagree with the conclusion that the floor

amendment proposed by Senator Martin to Assembly Bill 1309,

which was adopted as part of the OPRA statute "restored, with

respect to criminal investigatory records, the RTKL's 'required

by law' standard," Id. at 95, and thereby justified a narrow

interpretation of the phrase. Indeed, at a hearing before the

Senate Judiciary Committee on March 9, 2000, respecting public

access to government records, Senator Martin remarked:

The problem with the [RTKL] is that it only requires . . . documents that are required by law to be made public . . . . The statute, in other words, is very narrow in its form. And what has happened is that many records, which the public, I think, would expect to be made available to them, are not required to be made . . . . And so it creates an enormous loophole . . . .

. . . I fundamentally believe that the public is entitled to the records of its government . . . .

[Issues dealing with public access to government records: Hearing on S. 161, 351,

25 A-4226-14T3 573, and 866 Before the S. Judiciary Comm., 2000 Leg., 209th Sess. 1-2 (N.J. 2000) (statement of Sen. Robert J. Martin, Member, S. Comm. on RTKL precluding certain documents from public access).]

Given this statement, the legislative history of the statute,

and OPRA's express mandate that it must be construed in favor of

public access, N.J.S.A. 47:1A-1, it is anomalous to suggest that

the phrase "required by law" nonetheless must be interpreted to

broaden the scope of documents concealed from public view. See

N. Jersey Media Grp., supra, 441 N.J. Super. at 96–97.

Second, we disagree with the conclusion that the issuance

of a directive by the Attorney General, like that considered in

O'Shea, which required local police departments to prepare and

complete UFRs, are merely "internal agency directives on record

retention or creation" not within the meaning of "required by

law" under OPRA. Id. at 97. The Attorney General's directive

is not a prescription for the mechanism of storage or retrieval

of documents; rather, it is a clear expression of policy

pertaining to citizen encounters with members of law enforcement

agencies.

An Attorney General directive that is binding upon a local

police department which requires the recordation and

memorialization of incidents where the police have employed

physical force against a citizen is not, in our view, an example

26 A-4226-14T3 of a "generic record retention policy." Further, the suggestion

that by recognizing such Attorney General directives as

"required by law" gives rise to an anomaly in that an agency may

thereby "both require the making of a document, and exempt it

from access," id. at 103, is simply puzzling and, in any event,

not a persuasive reason for allowing a governmental agency to

hide the reports.

Third, we disagree with the suggestion that an officer's

decision to activate an MVR to document a traffic stop or

pursuit of a suspected criminal violation of the law may make

the recording "pertain to a criminal investigation, albeit in

its earliest stages." Id. at 105. Such a broad suggestion

implies too much, in our view; would be factually inaccurate in

most instances; and certainly is not true where, as here, the

MVR automatically starts when the officer simply activates his

overhead lights.

Accordingly, we part ways with the holding of North Jersey

Media Group, and we are persuaded that the rationale we employed

in O'Shea is more consistent with the legislative intent

expressed in OPRA. We return now to a consideration of the

matter at hand.

Here, the Law Division held that the MVR recordings were not

"criminal investigatory records" because the recordings were, in

27 A-4226-14T3 fact, "required by law" to be made. In reaching that conclusion,

the judge reasoned that the order of the Barnegat Township Police

Chief, requiring all officers to activate MVRs when making a

traffic or law enforcement stop, was authorized by statute and

unequivocally binding upon the police officers within the

department, and thus had the force of law. We agree.

When the facts of this case are examined, whether one

employs the rationale of O'Shea or considers the Legislature's

intent as revealed in the legislative history and the plain

language of OPRA, the MVR recordings were clearly required by law

to be made. A record required by a local law enforcement order,

issued pursuant to the delegation of power provided by N.J.S.A.

40A:14-118, is the equivalent of a record required by law.

While O'Shea dealt with an Attorney General directive that

applied statewide, 410 N.J. Super. at 382 (citing N.J.S.A.

52:17B-97 to -117; In re Gen. Discip. Hearing of Carberry, 114

N.J. 574, 577–78 (1989); In re Carroll, 339 N.J. Super. 429, 439

(App. Div.), certif. denied, 170 N.J. 85 (2001)), and here we

consider an order issued by the police chief of one

municipality, such distinction does not warrant a different

result. That is, in our view, a distinction without a

difference. The chief had the statutory authority to issue the

order, and it is clearly binding and enforceable on the members

28 A-4226-14T3 of the department. We do not consider that simply because the

order does not have statewide application, it is not "required

by law."2

Our dissenting colleague concludes that the chief's order

does not constitute a "law" because it does not have "statewide

application" and was "only issued by a local police chief." In

reaching this conclusion, our colleague apparently adopts the

rationale of North Jersey Media Group that a record is "required

by law" only if it is "mandated by a statute, regulation,

executive order or judicial decision" that applies statewide.

N. Jersey Media Grp., supra, 441 N.J. Super. at 97.

At the outset, we point out that our conclusions are rooted

in the record created by the OCPO to justify its decision to

refuse release of the MVR recordings. Our holding is that the

OCPO did not meet its burden of proof to show that an exemption

to disclosure applies under OPRA. The failure of proof is thus

a critical part of our holding herein, which our dissenting

colleague does not address.

Our research discloses that the phrase "required by law" is

contained within 435 statutes, and has been employed over 700

2 We note that further guidance on the scope of the "criminal investigatory records" exemption to OPRA may be provided because our Supreme Court has granted leave to appeal in North Jersey Media Group. See N. Jersey Media Grp. v. Twp. Of Lyndhurst, 223 N.J. 553 (2015).

29 A-4226-14T3 times by the Supreme Court and the Superior Court in reported

decisions. The very ubiquity of the phrase makes it impossible

to ascribe a precise definition to the word "law," and therefore

we must derive its meaning from the "context in which it was

employed." Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 230

(1963).3

Unlike our colleagues in North Jersey Media Group, and our

dissenting colleague here, we perceive no reason to support the

conclusion that the intent of the Legislature in enacting OPRA

would have restricted the phrase to statutes or regulations with

statewide application. Our understanding is that the

Legislature wished to shield from disclosure those materials

reflecting the professional judgments and efforts of

investigators and others employed within the context of a

criminal investigation where such disclosure would compromise

their efforts or endanger witnesses or others identified

therein. Cf. Irval Realty Inc. v. Bd. of Pub. Util. Comm'rs, 61

N.J. 366 (1972). However, the Legislature manifestly did not

intend to exclude from disclosure those materials that must be

3 Our dissenting colleague notes that "law" is "generally understood to include duly enacted statutes, ordinances, [and] regulations . . . ." Nonetheless, a municipal ordinance, of course, cannot have "statewide application," and, therefore, could not have been what the "Legislature had in mind" in employing the word here, our colleague concludes without explanation.

30 A-4226-14T3 generated in accordance with established authority and,

consequently, would not reflect the professional judgments and

discretionary efforts of law enforcement officers.

Given the context in which the phrase "required by law" is

employed by OPRA, the MVR recordings – which, in accordance with

the chief's highly detailed order, are generated automatically

whenever an officer activates the overhead lights in the police

vehicle - fall within the latter category. We need no further

explanation, lest we needlessly repeat our earlier conclusions.

Judge Grasso did not address the second component of the

criminal investigatory record exemption; that is, whether the

MVR recordings pertained to a criminal investigation. Given the

sparse record created by the OCPO in support of its election to

deny public access to the MVR recordings, there is little to

commend a remand to the Law Division for further consideration

of that issue. The burden of proof on this issue, as we have

explained, was the OCPO's obligation. The unexplained,

conclusory statements of Detective Halliday do not constitute

"specific reliable evidence" justifying the conclusion that

these records "pertain" to a criminal investigation, thereby

mandating their exemption from disclosure. Courier News, supra,

358 N.J. Super. at 382–83. Thus, the OCPO failed to carry its

burden on this issue.

31 A-4226-14T3 Addressing MVR recordings, as we noted earlier, our

colleagues in North Jersey Media Group reasoned, "when an

officer turns on [an MVR] to document a traffic stop or pursuit

of a suspected criminal violation of law, that recording may

pertain to a criminal investigation, albeit in its earliest

stages." N. Jersey Media Grp., supra, 441 N.J. Super. at 104–

05. Nonetheless, that case did not address the facts that

obtain here: the automatic activation of the MVR whenever the

patrol vehicle switched on its overhead lights. Accordingly, we

cannot conclude on this record that the Barnegat officers were

investigating anything when the lights were activated.

In O'Shea, Judge Kestin, writing for the court, reasoned:

In the absence of a factual showing that any of the reports sought in this matter pertained to an actual criminal investigation or to an existing related civil enforcement proceeding, we decline to adopt the position urged by defendant that UFRs should, generically, be regarded to be shielded from public access as records [pertaining to an investigation].

[O'Shea, supra, 410 N.J. Super. at 385.]

The certifications of Detective Halliday stated, in

conclusory fashion, that the "video recording pertains to two

ongoing, active criminal investigations . . . . The video also

pertains to two separate internal affairs investigations of [the

Tuckerton police officer] . . . ." These bald statements, as we

32 A-4226-14T3 have noted, are hardly the type of evidence which would compel

our adoption of their conclusions.

The existing record makes clear that the MVR recordings

were made before there was any contemplation of a criminal

investigation concerning the Tuckerton police officer. Further,

given the mandate of the general order of the Barnegat Police

Chief, it is abundantly clear that the MVR recordings were not

initiated as part of an investigation into a suspected eluding,

but rather the recordings commenced simply because the Barnegat

officers activated their overhead lights.

The Attorney General suggests that this record allows us

to reach the opposite conclusion inferentially because the

incident began with a vehicle failing to stop in Tuckerton

Borough, and the Barnegat police were notified when the vehicle

was being pursued. This, indeed, is the conclusion reached by

our dissenting colleague. We reject that conclusion, however,

given the OCPO's utter failure to adduce any evidence in the Law

Division that the officers here departed in any way from the

mandate of the general order. Moreover, the purpose of the MVR

recordings, as explained by the police chief in the general

order, militates against this conclusion. Therein, the chief

explained that the recordings are primarily intended to protect

the officers in the discharge of their official duties and serve

33 A-4226-14T3 as a training device, rather than fulfill an investigatory or

evidentiary function.

2. The Investigation in Progress Exception

The "investigation in progress" exception to OPRA is

defined in N.J.S.A. 47:1A-3 and provides that:

Notwithstanding the provisions of [OPRA], where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in [OPRA] may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced.

[N.J.S.A. 47:1A-3(a).]

Consequently, the public agency must prove that the

records: (1) pertain to an investigation in progress, and (2)

that their release would be inimical to the public interest.

Courier News, supra, 358 N.J. Super. at 380 (citation omitted).

Whether a record is "inimical to the public interest" is a

determination that must be made on a case-by-case basis.

Moreover, the need for confidentiality declines after the close

of the investigation. Keddie v. Rutgers, 148 N.J. 36, 54

(1997).

34 A-4226-14T3 Here, Judge Grasso held that the MVR recordings preceded

any investigation and, thus, the "investigation in progress"

exception did not apply. See N.J.S.A. 47:1A-3(a) ("[T]his

provision shall not be construed to allow any public agency to

prohibit access to a record . . . that was open [to the public]

before the investigation commenced.").

Given the record before us, Judge Grasso properly held that

the video preceded any investigation. Moreover, although he did

not explicitly address the second prong of this exception –

whether disclosure would be inimical to the public interest –

Judge Grasso's examination of the MVR recordings, like ours,

does not support a conclusion that their release would meet that

standard. Detective Halliday's unsupported and unexplained

statements in his September 2014 certification are insufficient

to create a fact issue for further consideration on a remand.

Accordingly, we decline to remand on this issue given the record

made by the OCPO.

3. Remaining Arguments

Finally, we address the OCPO's arguments concerning the

applicability of other OPRA exclusions because those exclusions

are not applicable to the facts of this case.

35 A-4226-14T3 a.

The OCPO argues that the MVR recordings are excluded from

public access under the executive order exemption. See N.J.S.A.

47:1A-9(a) ("The provisions of this act . . . shall not abrogate

any exemption of a public record or government record from

public access heretofore made pursuant to . . . Executive Order

of the Governor . . . ."). It then cites an executive order

issued by Governor Whitman that exempted "fingerprint cards,

plates and photographs and similar criminal investigation

records that are required to be made, maintained or kept by any

State or local governmental agency." Exec. Order No. 69 (May

15, 1997), Laws of New Jersey 1997, Vol. 2 at 2321.

However, the OCPO did not raise the executive order

exemption before the trial court. "Generally, issues not raised

[before the trial court], even constitutional issues, will not

ordinarily be considered on appeal unless they are

jurisdictional in nature or substantially implicate public

interest." State v. Walker, 385 N.J. Super. 388, 410 (App.

Div.) (citing Nieder v. Royal Indem. Ins., 62 N.J. 229, 234

(1973), and Ferraro v. Demetrakis, 167 N.J. Super. 429, 431–32

(App. Div.), certif. denied, 81 N.J. 290 (1979)), certif.

denied, 187 N.J. 83 (2006). On the other hand, "[a]n issue not

raised below may be considered by th[is] court it if meets the

36 A-4226-14T3 plain error standard or is otherwise of special significance to

the litigant, to the public, or to achieving substantial

justice, and the record is sufficiently complete to permit its

adjudication." Ibid.

Here, the OCPO may not rely on the executive order

exemption. While the exemption implicates the public's interest

in the access to public records, the OCPO, as the governmental

agency denying access, had an obligation to raise this argument

within a reasonable time. OPRA proceedings are designed to be

summary proceedings with the goal that records be produced in a

reasonable time to the public. Mason, supra, 196 N.J. at 69

("[C]itizens are entitled to swift access to public records, and

both the public and governmental bodies are logically entitled

to have any disputes brought and addressed in the same, rapid

manner."); see also N.J.S.A. 47:1A-6 (action filed in Superior

Court must "proceed in a summary or expedited manner"); N.J.S.A.

47:1A-5(i) (public agency must grant or deny access to

government record "as soon as possible, but not later than seven

business days"). Consequently, we decline to afford the OCPO,

as the governmental agency, the unfair advantage of raising a

new exclusion for the first time on appeal or remand, especially

given Judge Grasso's adjournment of the return date of the order

37 A-4226-14T3 to show cause to allow the parties additional time to marshal

and submit "supplemental briefs, certifications and evidence."

Moreover, in light of the OCPO's failure to raise the

executive order exemption below, this court shall not consider

whether any other circumstances warrant consideration of this

exemption on appeal. See Walker, supra, 385 N.J. Super. at 410

(emphasizing that an issue not raised in the trial court should

not be considered on appeal).

The OCPO also argues that the MVR recordings are unfiled

discovery, which is protected by N.J.S.A. 47:1A-9(b) as a

"privilege or grant of confidentiality" established or

recognized by judicial case law, and thus is not required to be

disclosed. We have recognized that OPRA incorporates the

confidentiality afforded to unfiled discovery materials.

Drinker Biddle, supra, 421 N.J. Super. at 497–98; see also

Estate of Frankl v. Goodyear Tire & Rubber Co., 181 N.J. 1, 10

(2004) (citations omitted) ("The universal understanding in the

legal community is that unfiled documents in discovery are not

subject to public access."). In Drinker Biddle, we held that

when a public agency received discovery from a private party

during litigation, and the materials were never filed, the

materials remained confidential and inaccessible under OPRA even

38 A-4226-14T3 though the materials were then in the possession of a public

agency. Drinker Biddle, supra, 421 N.J. Super. at 498.

Here, the OCPO did not receive the MVR recordings through

discovery from a private party. Instead, the recordings were

made by a governmental agency as part of law enforcement

training activities and not as discovery materials for

litigation. That the recordings have turned out to be relevant

discovery in subsequently filed criminal and civil actions does

not make them unfiled discovery within the meaning of N.J.S.A.

47:1A-9(b).

The OCPO and the Prosecutors Association argue that the

trial court erred in determining that the public's interest in

disclosure of the video outweighed the driver's privacy interest.

We disagree.

OPRA's privacy clause states that "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." N.J.S.A. 47:1A-1; see also

Burnett, supra, 198 N.J. at 427. To balance competing interests

in privacy and public access, a court must apply the Doe

factors:

39 A-4226-14T3 (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.

[Id. at 427 (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995)).]

This balancing exercise requires a case-specific analysis, and

appellate review of the trial court's application of the factors

is de novo. In re N.J. Firemen's Ass'n, 443 N.J. Super. 238,

264 (App. Div. 2015) (citations omitted), certif. granted, 224

N.J. 528 (2016).

In this case, the trial court reviewed the MVR recordings

in camera and determined that the driver had no privacy

expectation that overcame the public's right of access. Having

conducted an independent in camera review, and in consideration

of the Doe factors, we agree. The recordings requested are from

MVRs in police vehicles. The information contained relates to a

motor vehicle stop that took place in a public setting. The

recordings do not contain personal information about the driver.

Focusing only on the privacy interest, there is no potential

harm in any subsequent disclosure of the recordings because, if

40 A-4226-14T3 they are not excluded under OPRA, the public has a right to view

them. There is also no injury from disclosure to the

relationship during which the recordings were made. Drivers and

passengers in vehicles operating on public roadways do not have

a reasonable expectation of privacy in an MVR recording. The

reality of modern life is that video recordings are made in many

public places. The other Doe factors also militate in favor of

public access as compared to any legitimate expectation of

privacy a driver might have.4

d.

The remainder of the arguments on appeal, including the

OCPO's challenge to the counsel fee award, are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). Furthermore, as we affirm the judgment of the

Law Division ordering the disclosure of the MVR recordings under

OPRA, we need not conduct a common law analysis.

Affirmed.

4 Plaintiff filed a motion to supplement the record with a letter concerning the privacy issue. We deny that motion because we generally do not consider facts or materials that were not presented to the trial court. See Liberty Surplus Ins. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). Moreover, given our resolution of the privacy issue, there is no need for a consideration of the supplemental letter.

41 A-4226-14T3 _____________________________________

GILSON, J.S.C. (temporarily assigned), dissenting.

The majority holds that an order issued by a chief of

police in one municipality makes MVR recordings "documents" that

are "required by law to be made" within the meaning of the Open

Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The

majority also holds that the MVR recordings did not pertain to a

criminal investigation of an eluding incident. Accordingly, the

majority concludes that the MVR recordings are not "criminal

investigatory records" under OPRA. I disagree. I would reverse

the order of the Law Division and hold that the MVR recordings

in this case are exempt as criminal investigatory records.

Thus, I would remand for a determination of whether the MVRs

recordings could be accessed under the common law, an issue the

Law Division never reached.

The facts are contained in certifications submitted in

connection with an order to show cause application. While the

record is based on a summary proceeding, certain material facts

are established by the record.

This incident began with a driver eluding a police officer

in Tuckerton Borough and ended with the driver allegedly being

assaulted through the use of a police dog when the driver was eventually stopped and arrested in Barnegat Township. There

were, thus, two separate and distinct criminal investigations:

(1) the driver's eluding and motor vehicle offenses; and (2) the

Tuckerton police officer's alleged misconduct and aggravated

assault concerning his use of a police dog during the arrest of

the driver.

The MVR recordings at issue were made by dashboard cameras

in Barnegat Township police vehicles. Given these facts the

only logical explanation is that the Barnegat police were

notified of the eluding incident as the car chase was headed

towards Barnegat. Consequently, the responding Barnegat police

officers who activated their MVRs did so in response to an

ongoing eluding incident.

The majority correctly points out that OPRA accords the

public a broad right of access to government records "to ensure

an informed citizenry and to minimize the evils inherent in a

secluded process." Times of Trenton Publ'g Corp. v. Lafayette

Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury

Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super.

312, 329 (Law Div. 2004)).

In enacting OPRA, however, the Legislature also recognized

that certain "confidential" information collected by the

2 A-4226-14T3 government needed to be exempted from disclosure. N.J.S.A.

47:1A-1.1. One such category of exempted information is

"criminal investigatory records." Ibid. OPRA 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.

The majority correctly points out that the starting point

in interpreting a statute is to look at the plain language of

the statute. See Acoli v. N.J. State Parole Bd., 224 N.J. 213,

227 (2016). OPRA's definition of "criminal investigatory

record" makes clear that there are two factors that must be

shown by the public agency: (1) the record is not required by

law to be made, and (2) the record pertains to a criminal

investigation or related civil enforcement proceeding. N.J.S.A.

47:1A-1.1; see also N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst, 441 N.J. Super. 70, 90 (App. Div.), leave to appeal

granted, 223 N.J. 553 (2015); O'Shea v. Twp. of W. Milford, 410

N.J. Super. 371, 380-81 (App. Div. 2009).1

1 I agree with the majority that the public agency bears the burden to establish that a document or record is exempt under OPRA. I also agree with the majority's holding that the driver had no privacy expectations that overcame the public's right of access.

3 A-4226-14T3 A.

Turning to the first factor, the question is whether the

MVR recordings here were required by law to be made. The Law

Division held, and the majority agrees, that the MVR recordings

were required by law to be made because the Barnegat Chief of

Police had issued a "general order" in his municipality to

activate MVRs when there is a traffic or law enforcement stop.

I submit that the plain language of OPRA does not support the

conclusion that an order issued by a municipal chief of police

creates a "law" requiring a document to be made within the

meaning of OPRA.

The term "law," though given a variety of meanings

depending on its context, Seatrain Lines, Inc. v. Medina, 39

N.J. 222, 230 (1963), is generally understood to include duly

enacted statutes, ordinance, regulations, decisional law

established by courts, and executive orders. Id. at 231

(holding in context of the Temporary Disability Benefits Law,

the word "law" meant "statutory law or common law rule or

doctrine"); State v. Atlantic City Elec. Co., 23 N.J. 259, 270

(1957) (stating that "the rules and regulations of a State

administrative agency, duly promulgated under properly delegated

powers, have the force and effect of law"); Winberry v.

Salisbury, 5 N.J. 240, 247-48 (holding that the word "law" in

4 A-4226-14T3 the phrase "subject to law" meant substantive as opposed to

procedural law, and included not only legislation but also

common law), cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L.

Ed. 638 (1950); State v. Duble, 172 N.J. Super. 72, 75 (App.

Div. 1979) (holding that it has long been recognized that "a

municipal resolution, unlike an ordinance, is not a law" and

that "the term law 'when used without restriction or

qualification, refers to the public law of the state'" (first

citing then quoting In re Hague, 104 N.J. Eq. 31, 63 (Ch.),

aff'd by an equally divided court, 104 N.J. Eq. 369 (E. & A.

1929))); see also Clark v. Degnan, 163 N.J. Super. 344, 372

(App. Div. 1978), aff'd as modified, 83 N.J. 393 (1980).

Importantly, when counties or municipalities enact ordinances,

they do so only when the State Legislature expressly delegates

the authority for them to act. Holmdel Builders Ass'n v. Twp.

of Holmdel, 121 N.J. 550, 566 (1990).

Consequently, when enacting the "criminal investigatory

records" exemption in OPRA, the Legislature would have

understood the term "law" to include duly enacted statutes,

regulations, executive orders, and decisional case law.

Moreover, since the Legislature was not delegating power under

OPRA to municipalities, there is nothing to suggest that it

would have contemplated ordinances. Even more clearly, nothing

5 A-4226-14T3 in the plain language use of "law" would suggest that the

Legislature had in mind orders issued by a local police chief

that did not go through any legislative, municipal, or

regulatory review process. In other words, unlike laws and

regulations, the order that was issued here was issued by one

individual without any established process of review or comment

by the public.

Both the Law Division and the majority point to N.J.S.A.

40A:14-118 as the statute that delegates the authority to the

chief of police to create a "law." N.J.S.A. 40A:14-118,

however, provides a specific delegation of power to the

"governing body of any municipality" to create a police force;

it does not provide a chief of police authority to create law.

Specifically, that statute authorizes the "governing body of any

municipality, by ordinance," to create a police force, "provide

for a line of authority relating to the police function," and

appoint a chief of police. Ibid. N.J.S.A. 40A:14-118 then goes

on to state:

Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he [or she] shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he [or she] shall, pursuant to policies established by the appropriate authority:

6 A-4226-14T3 a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;

b. Have, exercise, and discharge the functions, powers and duties of the force;

c. Prescribe the duties and assignments of all subordinates and other personnel;

d. Delegate such of his [or her] authority as he [or she] may deem necessary for the efficient operation of the force to be exercised under his [or her] direction and supervision; and

e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority.

Nowhere in N.J.S.A. 40A:14-118 did the Legislature expressly or

implicitly delegate to a chief of police authority to make a

"law." While the Barnegat Chief of Police may have been

authorized to issue his order to the police officers working

under him, such a directive does not become a law. I,

therefore, disagree with the majority's holding that a record

required by a local law enforcement order "is the equivalent of

a record required by law."

7 A-4226-14T3 OPRA's legislative history also does not support the

conclusion that the term "law" should be read broadly. In North

Jersey Media Group, a panel of this court thoroughly analyzed

the Legislature's intent in enacting OPRA. N. Jersey Media

Grp., supra, 441 N.J. Super. at 93-97. As noted by both the

majority here and the panel in North Jersey Media Group, the

Legislature expressed its concern that OPRA's predecessor

statute, the Right-to-Know Law, L. 1963, c. 73, repealed by

OPRA, L. 2001, c. 404, was too limited in providing access to

public records. N. Jersey Media Grp., supra, 441 N.J. Super. at

93-94. The Legislature thus enacted OPRA with its broad

provisions to increase access to public records. Id. at 94.

The Legislature also created twenty-one exemptions, including

the pre-existing criminal investigatory records exemption.

N.J.S.A. 47:1A-1.1; N. Jersey Media Grp., supra, 441 N.J. Super.

at 93-94. The panel in North Jersey Media Group is persuasive

in its analysis of the specific legislative history in

concluding that the history of that exemption warrants a narrow

reading of the "required by law" factor. Id. at 97.

The majority's conclusion that the word "law" deserves a

broad reading rests on the directive in N.J.S.A. 47:1A-1 to

construe the provisions of OPRA "in favor of the public's right

of access." That provision, however, was not meant to eliminate

8 A-4226-14T3 the exemptions to OPRA. To hold that an order issued by a

municipal chief of police makes a document required by law,

would, by logical extension, effectively eliminate the criminal

investigatory records exemption. Applying the majority's

reasoning, any time there is a written directive calling for a

document to be created in a police department that document

would be required by law to be made and, thus, would not come

within the ambit of "criminal investigatory records." It is

hard to imagine that there are any criminal investigatory

documents created in a police department for which there is not

an order, directive or instruction calling for that document to

be prepared. For example, if a police department issued

instructions that officers were to prepare reports concerning

all criminal investigations, under the reasoning used by the

majority any and all such reports would be subject to disclosure

under OPRA.

Further, in my view, a review of existing case law also

does not support the conclusion that an order issued by a chief

of police creates documents that are "required by law to be

made." Our court has addressed the criminal investigatory

records exemption in two cases that adopt different

interpretations of the scope of what "required by law" means.

See N. Jersey Media Grp., supra, 441 N.J. Super. at 96-103;

9 A-4226-14T3 O'Shea, supra, 410 N.J. Super. at 381-85. In O'Shea, the court

held that the Attorney General's "Use of Force Policy" that

required the completion of Use of Force Reports (UFRs) has the

force of law for police entities. Id. at 384. Accordingly, in

O'Shea, the court held that UFRs were not criminal investigatory

records and were not exempt from access under OPRA. Id. at 385-

86. In so holding, the O'Shea court rejected the argument that

case law decided under the Right-to-Know Law provided guidance

on interpreting OPRA's "not required by law to be made"

standard. Id. at 381.

In North Jersey Media Group, another panel rejected

O'Shea's ruling and concluded that "it is appropriate to

interpret the 'criminal investigatory records' exception in

OPRA" by looking at "pre-OPRA case law interpreting the [Right-

to-Know Law's] 'required by law' standard in cases involving

requests for records pertaining to criminal investigations." N.

Jersey Media Grp., supra, 441 N.J. Super. at 96 & n.16

(expressly disagreeing with O'Shea's conclusion that the Right-

to-Know Law was inapplicable). North Jersey Media Group arose

from an OPRA request that sought various records from local,

county, and state law enforcement agencies concerning a fatal

police shooting of a criminal suspect. Id. at 81-82. Police

MVR recordings were among the records sought. Ibid. The court

10 A-4226-14T3 in North Jersey Media Group held that a record is "required by

law to be made" if its creation is "mandated by a statute,

regulation, executive order, or judicial decision." Id. at 97.

Thus, a record subject to "a generic record retention policy, or

an internal agency directive of a public official" is not one

that is required to be made by law. Ibid.

I believe that under either the rationale used in O'Shea or

the rationale used in North Jersey Media Group, the MVR records

here were not required by law to be made. Under the definition

of "required by law" adopted by North Jersey Media Group, a

local law enforcement order clearly would not be considered an

order that requires a record to be made by law. While the

definition adopted by O'Shea was broader than the definition

used in North Jersey Media Group, the O'Shea definition would

also not cover a local order that applied only in one

municipality. O'Shea dealt with an Attorney General directive

that applied statewide. Moreover, the Attorney General, as the

chief law enforcement officer of the state, has the statutory

authority to issue such statewide directives. See O'Shea,

supra, 410 N.J. Super. at 382 (citing "Criminal Justice Act of

1970," N.J.S.A. 52:17B-97 to -117; In re Gen. Disciplinary

Hearing of Carberry, 114 N.J. 574, 577-78 (1989); and In re

Carroll, 339 N.J. Super. 429, 439 (App. Div.), certif. denied,

11 A-4226-14T3 170 N.J. 85 (2001)). In contrast, here, we are dealing with an

order issued by the chief of police of one municipality. Such a

local order does not constitute an order that makes records

"required by law to be made" under OPRA because it does not have

statewide application and it was only issued by a local police

chief.2

In summary, a review of the language of OPRA, its

legislative history, and case law do not support the conclusion

that the MVR records in this case were required to be made by

law. As the majority noted, further guidance on the scope of

the "criminal investigatory records" exemption to OPRA may be

provided given that our Supreme Court has granted certification

to review the decision in North Jersey Media Group. N. Jersey

Media Grp., supra, 223 N.J. 553. In the meantime, the analysis

provided in North Jersey Media Group is persuasive in its

comprehensive review of the legislative history of OPRA and the

case law under the Right-to-Know Law. See N. Jersey Media Grp.,

supra, 441 N.J. Super. at 92-103.

2 Effective March 1, 2015, a new statute required MVRs to be placed in all new police vehicles that are primarily used in traffic stops. N.J.S.A. 40A:14-118.1. That statute, however, was declared unconstitutional by the Council on Local Mandates. In re Complaint Filed by Deptford Twp., No. COLM-0003-15 (Council on Local Mandates April 20, 2016), http://www.state.nj.us/localmandates/decisions. Moreover, the statute did not expressly require when MVR recordings would need to be made.

12 A-4226-14T3 B.

The trial court, here, did not address the second factor of

the criminal investigatory record exemption; that is, whether

the MVR recordings pertained to a criminal investigation.

Nevertheless, the majority reviewed the record and concluded

that the OCPO had not carried its burden to establish that the

MVR recordings pertained to a criminal investigation. I again

disagree. While the record was summary, the record supports the

conclusion that the MVR recordings were initiated to investigate

an in-progress eluding incident.

Both North Jersey Media Group and O'Shea discussed this

second factor of the criminal investigatory records exemption.

Addressing MVR recordings, the court in North Jersey Media Group

concluded that "when an officer turns on a mobile video recorder

to document a traffic stop or pursuit of a suspected criminal

violation of law, that recording may pertain to a 'criminal

investigation,' albeit in its earliest stages." N. Jersey Media

Grp., supra, 441 N.J. Super. at 104-05. The North Jersey Media

Group court did not "address whether a recording initiated to

document a suspected non-criminal violation of motor vehicle law

or a subsequent stop would properly be deemed to 'pertain[] to

any criminal investigation.'" Id. at 105 n.21 (alteration in

original). Moreover, the court in North Jersey Media Group also

13 A-4226-14T3 held that a record created before an investigation started does

not pertain to that investigation. Id. at 104.

In O'Shea, the court reasoned:

In the absence of a factual showing that any of the reports sought in this matter pertained to an actual criminal investigation or to an existing related civil enforcement proceeding, we decline to adopt the position . . . that UFRs should, generically, be regarded to be shielded from public access as records [pertaining to an investigation].

The certifications currently in the record state that the

"video recording pertains to two ongoing, active criminal

investigations . . . . The video also pertains to two separate

internal affairs investigations of the [Tuckerton] police

officer . . . ." The certifications also add that disclosure of

the MVR recordings "would compromise ongoing criminal and

internal affairs investigations and jeopardize any further

developments in these investigations." The existing record

makes clear that the MVR recordings at issue here were made

before there was any contemplation of a criminal investigation

concerning the Tuckerton police officer. Nevertheless, the

existing record also supports the conclusion that the MVR

recordings were started at a time when the Barnegat police were

already investigating an eluding incident.

14 A-4226-14T3 In evaluating the existing record, it is important to focus

on the language used by the Legislature in enacting OPRA. The

word "pertains" is defined as "to relate to someone or

something" or "to have a connection to a person or thing."

Pertain, Merriam-Webster.com, http://www.merriam-

webster.com/dictionary/pertain (last visited June 20, 2016).

Our Supreme Court has stated that an "investigation" begins when

"the inquiry departs from the routine and focuses with special

intensity upon a particular party." McClain v. Coll. Hosp., 99

N.J. 346, 357 (1985) (quoting Ctr. for Nat'l Policy Review on

Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir.

1974)). Applying the plain meaning of the word "pertains" to

the facts of this case, the MVR recordings pertained to the

eluding investigation.

In summary, I would hold that the MVR recordings here were

exempt from disclosure under OPRA as criminal investigatory

records. Consequently, I would reverse the order of the Law

Division and remand for a determination of whether plaintiff is

entitled to access under the common law.

15 A-4226-14T3