No OPRA or Common Law Access Right to Police Body-Worn Camera Video

Fuster v. Township of Chatham, ___ N.J. Super. ___ (App. Div. 2023). This Open Public Records Act (“OPRA”) case implicated not only that statute but the Body Worn camera Law, N.J.S.A. 40A:14-118.3 to -.5 (“BWCL”). One of the plaintiffs provided a statement to Chatham police that was recorded on a body-worn camera. The statement related to allegations that a male relative had engaged in sexual misconduct against plaintiffs’ special needs son. The police and other agencies investigated but found no probable cause to bring charges. Plaintiffs disagreed and filed an OPRA request for disclosure of police reports on the matter, as well as the recorded statement. The police reports were produced, but the recording was withheld as confidential. Plaintiffs sued under OPRA and the common law right of access, but the Law Division ruled against them, citing provisions of OPRA that exempted the video from disclosure. The Appellate Division affirmed in an opinion by Judge Perez-Friscia that applied de novo review on the legal issues presented.

In the Appellate Division the parties argued about whether and to what extent provisions of the BWCL abrogated OPRA exemptions. Judge Perez-Friscia discussed an array of statutory principles in that regard. She also analyzed the language of the BWCL and OPRA in detail, all in response to what she summarized as plaintiffs’ demand for “a statutory interpretation of the BWCL that abrogates OPRA’s exemptions.”

The Appellate Division disagreed with plaintiffs. “[A] a review of the plain language of these two statutes, read as a harmonious whole, demonstrates that the Legislature did not intend to preclude the application of OPRA’s recognized exemptions. Rather, under the BWCL, the Legislature: recognized and mandated recordings would not be exempt as criminal investigation records under OPRA; provided specific exemptions for ongoing investigations; and provided confidentiality for qualifying BWC recorded subjects requesting nondisclosure. The BWCL did not abolish the long-recognized confidentiality exemption afforded to uncharged individuals by judicial case law but preserved the application of existing OPRA exemptions.”

Plaintiffs fared no better under the common law right of access. Judge Perez-Friscia provided a good summary of the legal principles surrounding the common law right of access. She stated that the key inquiry was “whether plaintiffs’ right to access the video compels disclosure when balanced against the interests in non-disclosure.” That implicated the factors stated by the Supreme Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). Those factors are: “(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.”

The panel concluded that the balancing of these factors favored defendants. Accordingly, the Law Division’s decision denying relief under the common law right of access was affirmed.