Tag Archives: transparency

Supreme Court Rules Dash Cams Pertaining to Criminal Investigations Are Not Subject to OPRA

This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).

While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney General (AG) guideline or other law (statute, regulation, etc.) that required it to be made or maintained.[1]

The Court made it clear in Lyndhurst, however, that dash camera videos of police shootings should generally be released under the common law right of access within a few days of an incident. The AG subsequently issued a directive requiring their release within 20 days.

In Lyndhurst, the Court specifically said that it was not answering the question presented by Paff (which was pending on the Court’s docket): whether a directive by a local chief of police could satisfy the “required by law” standard, just as an AG directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the Court that dash camera videos are accessible under OPRA.

Unfortunately, the Court rejected that argument and thus the law remains the same: dash camera videos are only available under the common law right of access. But, it was a very close decision (4-3). Justice Albin wrote a biting dissent, which Justice LaVecchia and Justice Timpone joined, concluding that “[i]n 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.”

We think Justice Albin’s assessment is right and we hope that the Legislature or the Attorney General will accept his invitation for action:

In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today’s decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.

The public — particularly marginalized communities — will have greater trust in the police when law enforcement activities are transparent.

The public pays for the dash cameras. Why can’t we see the videos?

What Videos are Still Available?

  • Dash Cam Videos Relating to Crimes: These are probably not available under OPRA in most circumstances, but generally should be available under the common law per Lyndhurst.
  • Dash Cam Videos of Police Using Deadly Force: Same. Also, AG Directive 2018-1 requires disclosure under the common law within 20 days if the video depicts a deadly shooting or an incident where police use force that results in “serious bodily injury.”
  • Dash Cam Videos of a DWI: A DWI is not a crime, so these should generally be available under OPRA.
  • Dash Cam Videos of Traffic Stops: These should generally be available, unless the traffic stop turns criminal.
  • Body Camera Videos: We think these should be subject to OPRA because an AG Guideline requires them to be maintained. At the same time, the AG Guideline attempts to exempt body cam videos relating to criminal investigations. We have this issue pending on appeal.
  • Security Camera Videos: The Supreme Court ruled in 2016 that security camera videos are not subject to OPRA, but access should be granted under the common law where a person states a sufficient interest in the video.

PSWH partner CJ Griffin submitted a brief on behalf of several amicus curiae and participated in the nearly three-hour oral argument. Griffin has litigated dozens of police records cases, including Lyndhurst.  Contact CJ at cgriffin@pashmanstein.com


[1] A criminal investigatory record is a record that is 1) held by a law enforcement agency; 2) pertain to any criminal investigation and 3) are “not required by law to be made, maintained, or kept on file.”

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Amazon suit continues to get coverage

The New York Times has published an article about the serious lack of transparency regarding the proposals that cities have submitted bids to Amazon for their HQ2 Headquarters. Despite the fact that the taxpayers of the winning city will be on the hook for billions of dollars in incentives, too many cities are still keeping the public in the dark about what Amazon is being offered.

The article references our lawsuit, which secured access to the City of Newark’s bid, which we published.

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page “was used for the sole purpose of discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.

 

Newark Releases Its Amazon HQ2 Proposal

We previously blogged about an OPRA lawsuit we filed on behalf of an activist seeking access to Newark’s Amazon HQ2 proposal. We are happy to announce that Newark has now released its proposal to our client.

Newark’s proposal is titled, “Yes, Newark.” As evidenced by the privilege log it attached to the proposal, Newark redacted approximately 6 pages from its 200+ page proposal. These pages contained the financial incentives that Newark is offering to Amazon. All other information has been disclosed. We consider this a significant transparency victory.

“I strongly believe in open government. The people of New Jersey, especially Newark residents, deserve to know what their government is doing,” said Plaintiff Steven Wronko, a transparency advocate.

“Other finalist cities put their proposals online as part of their PR campaigns to win Amazon over. The citizens of those other finalist cities got to be part of the process and see how their cities were being promoted. That builds pride and buy-in from residents. The people of Newark were completely excluded, but we are happy that they can now be part of the process,” said CJ Griffin, who represented Mr. Wronko.

Among other things, the proposal highlights Newark’s diversity, technology infrastructure, and transportation systems. It includes more than 50 pages of letters of recommendations and details the proposed locations within the city for the headquarters:Locations

 

The full proposal may be downloaded here:

Proposal Part 1
Proposal Part 2
Proposal Part 3

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

AG Issues New Police Shooting Video Directive

Last week, Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-1, which provides instructions to law enforcement agencies in this State regarding public access to dash camera and body camera footage of police-involved shootings.  We find that there are both pros and cons to this new directive.

Pros:
On one hand, we are very happy to see that the new Attorney General clearly understands that transparency advances public trust in law enforcement. The overall spirit of this directive is positive and it recognizes that law enforcement do not need permanent confidentiality over their records–the directive requires disclosure of police shooting videos within 20 days, in most cases. The presumption of access is important and we hope that agencies will follow the directive and will not seek constant extensions of time to release these videos.

Cons:
On the other hand, the new directive does not give the public any more access than already existed pursuant to the Supreme Court’s decision in North Jersey Media Group v. Township of Lyndhurst. If anything, the new directive may make access to police shooting videos slower, as the Lyndhurst decision held that access must be granted “within a few days” and the new directive sets a timeline of 20 days.  We fear that  requestors will now need to wait for 20 days after an incident to file an OPRA request, then wait an additional 7 business days to gain access to the video. This is much slower than what we have experienced the past several months since the Lyndhurst decision was issued.

We are also disappointed that the directive only applies to videos which depict the use of deadly force or where other force results in “serious bodily injury.”  We think that the spirit of the Lyndhurst decision makes it clear that most police videos should be released relatively soon after an incident occurs, but the new directive applies Lyndhurst very narrowly and the public will still struggle to gain access to police video which shows other types of misconduct or more minimal uses of force.  For example, we think that if a police officer uses a racial slur toward a suspect while arresting them, the public should be able to see the video.  The new directive, however, would not require disclosure unless the suspect was seriously injured.  This is problematic.

News Coverage:
PSWH Partner CJ Griffin was quoted in NJ Advance Media’s article on the new directive.

 

For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

How to Monitor Police Agencies: Part 1

Police officers have the ability to arrest and detain suspects, to seize property, and to lawfully use force against people when justified.  Because police officers are given these tremendous powers, we hold them to very high standards—we expect that they will be honest, trustworthy, and follow the law and the Constitution.

In a two-part series, we will discuss how you can use OPRA to monitor police conduct. This blog highlights records you can request to monitor the use of force by police officers.

Use of Force Reports:

Pursuant to the Attorney General’s Use of Force Policy, every time an officer uses any level of force against an individual they must complete a Use of Force Report (“UFR”).  A UFR is a simple one-page report that provides information about a specific use of force incident, such as the names and biographical data of those involved and the type of force that was used. A model form is available here.

You can request UFRs relating to a single specific incident of force that you read about in the news or you can request all of an agency’s UFRs for a specific timeframe. By requesting all of an agency’s UFRs during a specific timeframe, you can determine how often force is used and whether there are any patterns that emerge, such as whether a specific officer uses force far more frequently than other officers or whether certain races are the target of force more often than others.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I would like all of your police department’s Use of Force Reports from January 1, 2017 to present date.”

“Pursuant to OPRA and the common law, I seek all UFRs that were created as a result of the police-involved shooting that occurred on May 1, 2017 involving a suspect named Bob Jones.”

Police Use of Deadly Force Attorney General Deadly Notification Report:

Where deadly force is used, a “Police Use of Deadly Force Attorney General Deadly Notification Report” must also be completed. This is true even if the deadly force does not actually result in death. If a police officer shoots at someone, that action constitutes the use of deadly force even if the officer misses. A model AG Notification Report is available here.

Sample OPRA request:
“Pursuant to OPRA and the common law, I would like all of your police department’s Police Use of Deadly Force Attorney General Deadly Notification Reports for the year 2016.”

Body-Worn Camera Footage:

Recently, The Lab @ DC released a report which suggests that Body Cams do not change police behavior and cause them to use force less often.  Body Cams do, however, promote transparency over the police. For example, The Trentonian has recently published Body Cam footage that has exposed police officers bragging about roughing up suspects. The public obviously has a significant interest in knowing that its officers are behaving this way so that it can advocate for discipline or leadership change.

Because Body Cam Footage is required to be made and maintained by Attorney General Law Enforcement Directive No. 2015-1, it cannot be exempt under OPRA’s criminal investigatory records exemption. It may, however, be exempt under the ongoing investigation exemption depending on the nature of the tape, when it was created, and whether releasing it would be harmful to the public interest. The Supreme Court, however, has said that the public’s interest is in disclosure where police use of force is involved and that an agency should not need to withhold police video for more than a few days in most instances.

Sample OPRA request:
“Pursuant to OPRA and the common law, I seek all Body-Worn Camera Footage for the police-involved shooting that occurred on 5/1/17 at 29 Main Street.”

Dash Camera Footage:

The Supreme Court has recently ruled that dash camera videos that relate to criminal incidents are not subject to OPRA because there is no law that requires it to be made, thus it is a criminal investigatory record. That may change when the Court decides Paff v. Ocean County Prosecutor’s Office next year. In the interim, the Court has made it clear that dash cam footage should be routinely disclosed under the common law right of access.  Accordingly, make sure to invoke the common law when you file your records request.

Dash camera footage that relates to a non-criminal incident, however, is subject to OPRA. So, if your mayor was caught on tape after being pulled over for a DWI, that video should be publicly accessible.

Sample OPRA request:
“Pursuant to OPRA and the common law right of access, please provide all dash camera footage from the incident that occurred on October 1, 2017 wherein Mayor Jones was pulled over for a DWI.”