Monday, November 7, 2016

Middlesex judge orders release of police dash-cam video.

In an October 27, 2016 written opinion, Middlesex County Assignment Judge Travis L. Francis ordered the Township of Old Bridge to release a police cruiser's dashboard camera recording of former Carteret Borough Police Director Ronald Franz's February 23, 2016 arrest for Driving While Intoxicated (DWI).

Other than the video's disclosure, which is a hotly contested issue (as explained below), Judge Francis also ruled on two other important issues:  a) absent extraordinary circumstances, basic information about an arrest (known as "Section 3(b) information") must be released regardless of whether an "investigation in progress" or criminal investigatory record" exemption applies and b) a 2006 consent order required the Old Bridge Police Department, when responding to an OPRA request, to exercise its own discretion and not rely on the prosecutor's office's instructions.

Regarding the dash-cam video, there are, at the time of this writing, two conflicting, published Appellate Division decisions--North Jersey Media Group, Inc. v. Township of Lyndhurst and John Paff v. Ocean County Prosecutor's Office--that define the scope of the Open Public Records Act's Criminal Investigatory Records (CIR) exemption. Until the Supreme Court makes a definitive ruling, Judge Francis was permitted to choose which of the two cases he wanted to apply and he chose the Ocean County case. (Update: On July 11, 2017, the Appellate Division's decision in North Jersey Media Group, Inc. v. Township of Lyndhurst, 441 N.J. Super. 70 (App. Div. 2015) was mostly reversed by the Supreme Court.  The Supreme Court's decision is here.  A summary of the decision is here.)

The CIR exemption applies only if two things are true: a) the requested record is not required by law to be made or maintained and b) the record pertains to a criminal investigation or related civil enforcement proceeding.  If either of those two prongs are false, then the record is not exempt as CIR. 

One of the differences between the the two cases is that Lyndhurst defines "law" narrowly to mean that the first prong is satisfied unless a statute, regulation, executive order or judicial decision mandates that the record be made or maintained.  The Ocean County case defines "law" more broadly, allowing lesser writings such as an Attorney General Directive to count as a "law" for the purposes of the CIR exemption.  Thus, more records are available under the Ocean County decision's definition than Lyndhurst's.

Old Bridge, in its denial of the request for the recording, followed Lyndhurst (Paff had not yet been decided when Old Bridge denied the request) finding that since no "law" (i.e. statute, etc.) required the dash cam recording to be made and because it pertained to an active, ongoing investigation by the Middlesex County Prosecutor's Office, it was exempt from disclosure.  Judge Francis, however, found that an order of the Old Bridge Police Chief, which required the cameras to activate automatically in certain cases (when the siren or emergency lights are activated, for example), was a "law" that required the videos to be made.  Judge Francis also ruled that the recording did not "pertain to" a criminal investigation because the underlying offense was a traffic violation (rather than a criminal matter) and because Old Bridge didn't prove that the video recording was taken only after the investigation began.

Separately, Judge Francis ruled that the "investigation in progress" exemption did not justify suppression of the video because disclosure would not be "inimical to the public interest" and because it likely qualified for disclosure before any investigation began.

The plaintiff in the case was Steven Wronko who was represented by CJ Griffin of Hackensack.

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