By a 4-3 margin, the New Jersey Supreme Court narrowly dealt a blow to the ability of the public to access police dash cam videos with their ruling in John Paff’s latest case against the Ocean County Prosecutor’s Office on Monday.
Paff’s suit sought the release of police dash cam video of the use of force incident involving former Tuckerton K9 officer Justin Cherry. Cherry faced criminal charges that were later dropped in connection with the incident.
Police dash cam videos provide the opportunity for the public to bear witness to potential abuses of civil liberties and other police misconduct. In plenty of other cases, they’ve exonerated innocent police officers who have faced false accusations.
Both of these facts are reason enough to both ensure police vehicles are equipped with cameras. But all too often, this footage remains locked away in police filing cabinets, and out of the hands of the very public it should serve.
As a matter of public policy, and in staying true to the spirit of New Jersey’s public records law, citizens would have been better served if the Supreme Court agreed with Paff and preserved the ability of the public to obtain police dash cam videos under the state’s freedom of information law.
The majority ruled that since dash cam videos are not required to be maintained under state law, police departments could withhold them from disclosure under OPRA, citing exemptions protecting criminal investigations in progress. The only avenue for an interested party to obtain dash cam videos under this precedent would be to request them under the common-law right of access, which can often be an untenable situation.
Requesting the videos under the common law rather than OPRA would require the requester to show why their interest in obtaining the video is greater than any confidentiality interests at play, which can often be an insurmountable obstacle that is sensitive to the facts of each case.
In his dissent, Justice Barry Albin, (quoted by Paff in his social media posting) got it right:
“In the wake of today’s majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police,” Albin wrote.
Police footage obtained using public records requests raised the alarm about egregious police overreach when a man from Toms River was forced to submit to a humiliating roadside body cavity search by state troopers.
While the Ocean County Prosecutor’s Office can no doubt chalk today’s decision up as a victory, their track record on OPRA leaves much to be desired.
Need we remind you how Prosecutor Coronato’s office had to remove their previous OPRA custodian for, inter alia, taking to Facebook and advocating for the repeal of the very law his job required him to implement? (The author was victorious against the same records custodian in a 2015 complaint complaint before the state Government Records Council). To his credit, Coronato quickly removed the custodian after the information came to light.
OPRA issues at OCPO did not occur in a vacuum. Town by town, and even at the state & county level we’ve seen governments hostile to fulfilling their transparency obligations, which necessitates strong case law protections for ensuring compliance with OPRA’s commands.
In Berkeley, you might get a snippy email from local officials if you file too many OPRA requests. Toms River has began cryptically dispatching EMS calls to obscure call locations, which necessitated additional OPRA requests, complementing the police department’s use of encrypted radios designed to lock out the public – while officials in the clerk’s office refuse to answer certain OPRA requests.
Given the broad array of threats to transparency, the public should pay special attention to cases like these which govern the extent to which information is made available to the public.
CJ Griffin, Esq., one of the state’s leading OPRA attorneys who has represented Ocean County Politics in court called for a legislative response to today’s decision.
We believe that it’s clear that the legislature should act in response to the court’s ruling.
The public has seen tireless advocates for transparency in both Griffin and Paff, who have pursued OPRA litigation throughout the state as a part of efforts to bring about greater government transparency and enforce the public’s right to know.
When officer-involved shootings and other matters of public concern involving members of law enforcement take place, citizens, journalists and members of the public alike are best served when every piece of evidence is available so that all facts of the situation can be accurately apprised. When law enforcement is transparent, the public may make fully informed judgement calls and not jump to conclusions – as is unfortunately the case when a dearth of information leaves rumors, speculation & conjecture to fill the void.
Today’s decision will undermine the public’s knowledge about the workings of their local police department – and inevitably – public trust in law enforcement as a whole.