Since November 2015, the Supreme Court has granted certification in seven cases that presented issues under the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. (“OPRA”). To put that in perspective, prior to November 6, 2015, the Court had decided ten OPRA cases. Of those, seven new cases for which the Court granted certification, all but two have been decided: Paff v. Ocean County Prosecutor’s Office and Brennan v. Bergen County Prosecutor’s Office. Here, we discuss both cases.
Paff v. Ocean County Prosecutor’s Office: Are Police Motor-Vehicle Recordings Public Records?
In Lyndhurst, the Court held that police motor vehicle recordings were not public records under OPRA because they could identify no law that required them to be created. In Paff v. Ocean County Prosecutor’s Office, we can expect the Court to decide an issue left unresolved by its opinion in North Jersey Media Group v. Township of Lyndhurst.
In Lyndhurst, the Court held that if a record is “required by law” to be made by a public agency, then that record could not be a criminal investigatory record, even if it pertained to a criminal investigation. When the Court applied that rule to use of force reports (“UFRs”), the Court held that UFRs were required by law to be made because the Attorney General’s Office Use of Force Policy required that they be created whenever police officers used force on subjects. The Court held that the Use of Force Policy constituted “law.” However, the Court raised but declined to answer the question of whether local police directive constituted “law.”
As observed in footnote 5 of the Court’s opinion in Lyndhurst, the issue of whether a local police order or directive is “law” within the meaning of N.J.S.A. 47:1A-1.1 is squarely presented by the Paff case. In that case, the Appellate Division, in a split decision, affirmed the Trial Court’s decision that police video recordings of a traffic stop that escalated into a motor vehicle pursuit were public records.
According to a local police directive, the video recorders in the police vehicles would automatically begin recording whenever an officer activated their overhead lights. While officers could stop the recording, the local directive prohibited them from doing so while a motor vehicle stop or incident was active. The Appellate Division held that the local police directive was “law” that required the video recordings to be made, and thus they fell outside of the definition of an exempt “criminal investigatory record.”
In this regard, the majority of the Panel disagreed with the Appellate Panel that had decided the Lyndhurst case, and correctly anticipated the holding of the Supreme Court. We expect that, probably in the first half of 2018, the Supreme Court will determine whether local police directives have the same force of law as do Attorney General guidelines.
Brennan v. Bergen County Prosecutor’s Office: Are home addresses public records?
In Brennan, the Court is poised to rule on whether home addresses are not public records under OPRA.
Any practitioner in this area should acknowledge that, since Burnett v. County of Bergen, in which the Supreme Court held that a public agency was required to redact social security numbers from public records prior to their bulk disclosure, the trend has been for more privacy, not less. One of the most important inquiries, if not the most important, in any case is the linkability of personal identifiers, such as private email addresses, home phone numbers, and social security numbers, to real persons.
Here, in an unpublished opinion, the Appellate Division reversed the Trial Court and held that the names and addresses of successful bidders at a public auction of sports memorabilia seized by law enforcement were not public records. After payment of the auction house’s fee, the remaining proceedings were to go to Bergen County.
At the auction, bidders could bid on the items by raising numbered paddles or by placing bids online. The Court held that the successful bidders had a reasonable expectation of privacy in their identity and home addresses because their identities were essentially masked during the auction through the use of numbered paddles and participation through the Internet. In addition, the Court held that the bidders had a substantial interest in not being publicly identified as collectors of sports memorabilia, especially if such collections could be substantial or valuable, thus making them targets for criminals.
If the Court affirms the holding of Brennan, we are concerned with how broadly the Court would apply its holding. Would the Court go so far as to hold that all home addresses are non-public records? Such a holding would be calamitous for both open government and commercial transactions.
Lien searches, title searches, background checks, commercial relationships, and hundreds of other types of transactions would be imperiled or made more difficult or expensive. While the public may not hold a strong interest in knowing the identity of a successful bidder at an auction of seized property, certainly the public does have a substantial concern in knowing the identities and home and business addresses of property owners, lien holders, judgment debtors, and similar information.
As in the Paff case, we expect the Court’s decision to be issued in the first half of 2018.
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