- Associated Press - Saturday, October 10, 2015

NEW BRUNSWICK, N.J. (AP) - A state Superior Court judge in Middlesex County is sounding the alarm on a court ruling that could leave police body-camera and dashboard-camera videos “shielded in secrecy.”

If a June appellate court ruling is allowed to stand, Judge Travis Francis said last month that not only may state residents and the news media be barred from seeing videos of controversial police traffic stops and arrests, but other public agencies, such as the Division of Taxation or the Department of Environmental Protection, could use the ruling to keep the public in the dark.

Francis provided his scathing review of the appellate decision after he was forced last month to reverse his earlier rulings ordering the Middlesex County Prosecutor’s Office to turn over 119 police dash-cam videos of New Brunswick police chases to an activist.

The Home News Tribune (https://mycj.co/1Mk6O0h) reports that dash cam videos have long been recognized by the courts in the state as public records.

But in June, an appellate court panel reversed that precedent, ruling that police video recordings are exempt under the state’s Open Public Records Act because they are not required by law to be kept or maintained, and because the videos “pertain to a criminal investigation.”



The decision came at a time when a growing number of police departments in the state, as well as the State Police, are equipping officers with body-worn cameras. Last year, Gov. Chris Christie signed a law requiring cameras in all new patrol cars. The Legislature is considering a measure that would require all police departments to outfit officers with body cams.

The efforts come after a series of high-profile police shootings, mostly of black men, across the country, prompting civil unrest in places like Ferguson, Missouri, and Baltimore, as well as a national push for greater police accountability.

But as departments adopt the recording technology, questions about cost and the right of the public to access the videos remain. County prosecutors and police chiefs from across the state are expected to meet with the Attorney General’s Office later this month to discuss some of these issues.

The fallout from the appellate decision in North Jersey Media Group v. Lyndhurst - an OPRA case in which The Record newspaper of Bergen County sought videos of a police shooting - already is being felt in Central Jersey as the newspaper appeals to the state Supreme Court.

After that ruling, the Middlesex County Prosecutor’s Office asked Francis to reconsider his April and May decisions granting activist William Brennan access to the 10 years of video.

Francis did so, but reluctantly.

Calling motor vehicle recordings (MVRs) “one of the best documents to use to keep a watchful eye over government or to get to the facts of a set of circumstances,” Francis said the appellate decision’s exemption is “virtually limitless” and that it establishes “a bright line shielding all criminal investigatory records of any age” including closed cases.

“This court muses at the notion the OPRA was created to assist those trying to keep a watchful eye over the police in their general duties but If an interaction is documented on an MVR or body camera, the same would be considered an exempt criminal investigatory record,” Francis writes in his Sept. 21 decision obtained by MyCentralJersey.com.

“Now, the news or any inquisitive citizen must understand what happened in an event through a press release, as access to these MVRs is forever barred from OPRA related public access.”

A spokesman for the Prosecutor’s Office did not return a request for comment.

The Attorney General’s Office applauded the appellate ruling in June, saying the “decision reaffirms the longstanding principle in New Jersey that criminal cases should be tried in court” and “preserves and protects the integrity of judicial proceedings, including the rights afforded to criminal defendants, and recognizes that law enforcement agencies must be able to conduct a thorough and effective investigation unhindered by the premature public release of investigative materials.”

But some lawmakers and civil liberties advocates disagree.

“I’m glad to see that Judge Francis came out against this. This is nuts,” said John Paff, an open-government activist from Franklin in Somerset County who has filed numerous precedent-setting OPRA lawsuits in recent years.

Paff on Thursday said how the Supreme Court rules on the Lyndhurst case will be “a watershed moment.”

“The only thing we have left is public oversight,” he said. “Police are the government and they are one of the most important areas of government that need to be overseen because they have a unique monopoly on the use of force on people. They are the people in certain cases that can kill you.”

North Plainfield Police Chief William Parenti said that if Francis’ interpretation of the appellate decision is true, “that would go completely against what we are hoping to achieve” in terms of transparency.

“If you are doing stuff right, and you think your officers are doing stuff right, in 100 percent of complaints of misconduct that were recorded, we came out looking good every time the video was there,” he said.

But Parenti said there needs to be “a very delicate balance” between the right to know and privacy. If an officer wearing a body cam goes into a person’s home, he asked, would residents want video of their children or video of a battered spouse to be released to the public?

State Sen. Peter Barnes III, D-18th District, who has introduced several measures aimed at improving police accountability, said that while body cam videos may raise questions of privacy, he sees “very few exceptions that would come into play” preventing dash-cam videos from being turned over to the public and the press.

“I would agree with Judge Francis,” Barnes said. “The cameras protect the public and they also protect the police. But police departments and prosecutors should not have total discretion over that decision. There needs to be a higher standard in light of what is going on around the country.”

In July, the Attorney General’s Office released a 24-page directive for police on the use of body cameras, covering when and where officers should turn their cameras on or off and who should have access to the recordings. The directive gives county prosecutors the ultimate discretion in deciding whether a recording should be released in response to an OPRA request.

Ed Barocas, legal director for the American Civil Liberties Union of New Jersey, said both the directive and the appellate decision should leave the public “very concerned.”

He said videos of police incidents involving the fatal chokehold arrest of Eric Garner in Staten Island, New York, the fatal shooting of Tamir Rice in Cleveland and the shooting of Walter Scott after a traffic stop in South Carolina, among others, “spurred national discussion about police reforms” and body cams.

“If you take away the public’s ability to access this information, including information about themselves on these videos, or leave complete discretion up to the prosecutors, then we will simply slip back to police policing themselves, which has not worked.”

The state’s dash-cam law was championed by Assemblyman Paul Moriarty, D-4th District, who used a dash cam to clear his name after he was stopped by a police officer who was later accused of acting illegally and falsely charging the South Jersey lawmaker with driving while intoxicated.

But even Moriarty doesn’t believe that public access to the recordings should be absolute, citing concerns that the videos might be exploited by “voyeurs” or websites that might seek to request a large number of videos to share online, which could become a burden for municipal clerks and police departments.

“It’s not an easy answer,” he said. “I’m for open and transparent government, but there’s got to be some limits otherwise it starts getting unwieldy and costly.”

But Moriarty added that anybody who appears in a video should “always have access under all circumstances” to request the recording “and do anything you want with it.”

“That’s where I veer from the attorney general’s recommendations,” he said. “Most of it is very well thought out and presents a good starting point, but I think they could be a little more transparent.”

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