Courtesy NPR/Boston Globe

KMC Partner Peter J. King recently obtained a precedential Appellate Division decision that affirmed a municipality’s denial of an Open Public Records Act (OPRA) and common law request seeking certain police body worn camera (BWCs) videos involving sexual misconduct allegations.

In the case, Fuster v. Twp. of Chatham, a father gave a statement to Chatham Police alleging sexual misconduct against his special needs son, which was recorded on a BWC. After the Department determined that the allegations were insufficient to file charges, the father filed a records request for the BWC, which was denied, leading to the litigation.

The Appellate Division affirmed Chatham’s denial of the records request under both OPRA and the common law, holding that the video was confidential. It applied precedent from N. Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor’s Off., 447 N.J. Super. 182 (App. Div. 2016) that records involving a person who is not arrested or charged with an offense are confidential and not subject to disclosure.

This doctrine is based upon the consideration that disclosure of non-charged individuals would implicate the integrity and effort of law enforcement efforts, and that confidentiality protects the privacy interests of those who lack knowledge of allegations and stand to face “irreparable public condemnation” if disclosure is made.

The opinion also explained that OPRA’s exceptions generally apply to requests for BWCs, in addition to following exceptions that are contained in the new BWC law (N.J.S.A. 40A:14-118.3 et seq.), to exempt videos that: a) are not subject to a minimum three-year retention; b) capture images of an encounter in which a complaint has been filed and the complainant requests non-disclosure; c) are determined to have “evidentiary or exculpatory” value for training purposes, and d) contain a subject (or parent/guardian/next of kin) who has requested non-disclosure. At the same time, the BWC law confirms that the criminal investigatory records exception does not apply to BWCs.

The decision in Fuster v. Twp. of Chatham, A-1673-22 (App. Div. Dec. 27, 2023) was published by the Appellate Division, so it constitutes binding judicial precedent across New Jersey. It stands as the most recent opinion providing guidance to municipalities regarding records requests for BWCs.

King, Moench & Collins regularly provides counsel to both public and private clients on public records issues. If you are an individual or government agency affected by public records requests under the Open Public Records Act or common law right of access, please contact us for legal representation. Please call Peter J. King, Esq. in our Morris County office at 973-998-6860 or Michael L. Collins, Esq. in our Monmouth County office at 908-902-0738.

The materials in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. The use of this material does not create an attorney-client relationship between King, Moench & Collins LLP and the user.