                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4226-14T3

JOHN PAFF,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             June 30, 2016

v.                                        APPELLATE DIVISION

OCEAN COUNTY PROSECUTOR'S OFFICE,

     Defendant-Appellant.
_____________________________________

         Argued February 3, 2016 – Decided June 30, 2016

         Before Judges Fuentes, Kennedy, and Gilson
         (Judge Gilson dissenting).

         On appeal from Superior Court of New Jersey,
         Law Division, Ocean County, Docket No.
         L-1645-14.

         Samuel   Marzarella,  Supervising   Assistant
         Prosecutor, argued the cause for appellant
         (Joseph    D.    Coronato,    Ocean    County
         Prosecutor, attorney; Mr. Marzarella and
         Nicholas D. Norcia, Assistant Prosecutor, on
         the brief).

         Richard M.    Gutman   argued    the   cause    for
         respondent.

         Annmarie   Cozzi,   Bergen   County   Senior
         Assistant Prosecutor, argued the cause for
         amicus curiae County Prosecutors Association
         of New Jersey (Sean F. Dalton, President,
         attorney; Ms. Cozzi, of counsel and on the
         brief).

         Alexander Shalom argued the cause for amicus
         curiae American Civil Liberties Union of New
              Jersey Foundation (American Civil Liberties
              Union of New Jersey Foundation, attorneys;
              Edward L. Barocas, Iris Bromberg, Jeanne
              LoCicero, and Mr. Shalom, on the brief).

              Ian C. Kennedy, Deputy Attorney General,
              argued the cause for amicus curiae Attorney
              General of New Jersey (John J. Hoffman,
              Acting   Attorney  General,   attorney; Mr.
              Kennedy, of counsel and on the brief).

       The opinion of the court was delivered by

KENNEDY, J.A.D.

       This    appeal       concerns       the     public's       right     to     access

recordings     from     the    mobile   video         recorders    (MVRs)    in    police

vehicles      under   the     Open   Public      Records    Act    (OPRA),       N.J.S.A.

47:1A-1 to -13, and the common law.                   Plaintiff, John Paff, filed

a verified complaint and an order to show cause seeking MVR

recordings of an incident involving a Tuckerton Borough police

officer's      arrest    of    a   driver    for      eluding     and   motor     vehicle

offenses.       Judge Vincent Grasso ordered the recordings to be

disclosed pursuant to OPRA, holding that they were government

records, which were neither exempt as a "criminal investigatory

record,"      N.J.S.A.        47:1A-1.1,     nor       excepted    as     part     of    an

"investigation in progress," N.J.S.A. 47:1A-3(a).                         He also held

that   the    driver's        "expectation       of    privacy"    did    not     justify

withholding the recordings and, later, entered an order awarding

plaintiff counsel fees and costs.




                                            2                                     A-4226-14T3
    Defendant,        Ocean    County   Prosecutor's         Office       (OCPO),        and

amici, the New Jersey Attorney General (Attorney General) and

the County Prosecutors Association of New Jersey (Prosecutors

Association), urge reversal.             Amicus American Civil Liberties

Union of New Jersey (ACLU) joins with plaintiff in arguing for

an affirmance.        Having reviewed the record and applicable law,

we affirm.

                                        I.

    The facts that follow are drawn from the limited record

developed before the Law Division on the order to show cause,

which     consists    of     various    certifications            submitted      by      the

parties.     The MVR recordings were made by dashboard cameras on

Barnegat Township police vehicles during a motor vehicle stop on

January 29, 2014.

    On that date, a Tuckerton Borough police officer patrolling

in a marked vehicle activated his overhead lights to effectuate

a motor vehicle stop.          The driver, however, did not stop and a

motor   vehicle      chase    ensued.        As    the    vehicle     headed      toward

Barnegat    Township,      police   there     were       alerted.      Two    Barnegat

Township    police    vehicles      joined        the    chase,    with   their       MVRs

recording     the    fleeing     vehicle,         its    subsequent       stop      in     a

municipal parking lot in Barnegat Township, and the driver's

arrest.     The MVRs of the two Barnegat police vehicles captured




                                         3                                       A-4226-14T3
audio and video of the Tuckerton police officer and his police

dog during the arrest of the driver.

      Following her arrest, the driver was charged with eluding,

N.J.S.A. 2C:29-2(b), resisting arrest, N.J.S.A. 2C:29-2(a), and

various motor vehicle offenses.                  The Tuckerton police officer

who initiated the stop was later the subject of an internal

affairs investigation, and he was charged in April 2014 with

second-degree      official        misconduct,        N.J.S.A.      2C:30-2,      third-

degree    aggravated     assault,      N.J.S.A.        2C:12-1(b)(1),       and   other

offenses    arising     from   his    use       of   the   police   dog   during     the

arrest.     In January 2015, an Ocean County grand jury returned an

indictment against the officer.

      The incident was the subject of news reports, and, on May

20,   2014,     plaintiff,     a    New   Jersey       resident     who   operates      a

website focused on public affairs, sent written requests to the

OCPO and Barnegat Township for copies of "the video of this

incident" and any summonses issued to the driver.                           Plaintiff

cited    both    OPRA   and    the    common         law   as   authority      for   his

requests.

      The OCPO denied plaintiff's requests in a letter dated May

28, 2014, asserting that the records were exempt as part of a

"criminal investigation in progress" and "an internal affairs

matter."      Later, however, that office gave plaintiff copies of




                                            4                                  A-4226-14T3
the criminal complaint and motor vehicle summonses issued to the

driver, but declined to release the MVR recordings, citing the

"active criminal investigation" exemption.

    Plaintiff filed a verified complaint and an order to show

cause seeking the MVR recordings under OPRA and the common law.

Thereafter,    the    parties     submitted      briefs     and    certifications

supporting their positions with respect to the release of the

MVR recordings.      The driver, who was not a party to the action,

wrote to the OCPO objecting to the release of the recordings,

citing privacy concerns.

    In a certification dated July 1, 2014, John Halliday, a

detective with the OCPO, stated that the MVR recordings "pertain

to two ongoing, active criminal investigations – that of the

police   officer     involved,     as   well     as   the    victim    who    eluded

police."     He added that both the OCPO and the Tuckerton Borough

Police   Department      are    conducting       "separate       internal    affairs

investigations" arising from the events of January 29, 2014.

    Halliday       further     stated   in   a   second     certification       dated

September 2, 2014, that "while not every police department" in

the State uses MVRs, "when these videos are produced they are

the work product of the police officer who operates the dash

cam."      This    statement     was    followed      by    an    assertion      that

disclosure    of   the   video    recordings      would     "compromise      ongoing




                                        5                                    A-4226-14T3
criminal and internal affairs investigations and jeopardize any

further developments in these investigations."

    Jeffrey Ryan, a sergeant in the Barnegat Township Police

Department,   also   submitted   a   certification,   in    which    he

identified himself as the individual responsible for "training

officers in the use of [MVR] equipment."     He supplied a copy of

the "general order" governing the use of MVRs first issued by

the Barnegat Police Chief in March 2008 and revised on January

9, 2014.   Therein, the chief announced that:

                It is the policy of this agency to use
           mobile video recorders in order to protect
           the members of this agency and to record
           information related to motorist contacts and
           other    patrol    related   activities.    In
           addition,    the   equipment    will   provide
           valuable instructional material to be used
           in in-service training. While evidence may
           be captured on the recordings, the use of
           video and audio recording equipment by
           members of the patrol division in the
           performance of their duties is not intended
           as a device to document all evidentiary
           material    relative     to    future    court
           proceedings. Any evidence obtained is a by-
           product of the primary purpose for the
           installation    of  mobile   video   recording
           equipment.

                . . . .

                The   record   function   of   the MVR
           equipment is automatically initiated when
           the patrol vehicle's emergency lights are
           activated or the wireless microphone is
           turned on. Whenever the video recording has
           been activated officers shall ensure that
           the audio portion is also activated.



                                 6                            A-4226-14T3
    Section     I    of   the   general   order      sets   forth   the    "pre-

operational procedure" for the use of MVRs in patrol vehicles

required   in   Barnegat    Township,     and   it    explicitly    provides,

"[a]ll officers assigned to the patrol division shall receive

training in the use and operation of the MVR."

    Section II of the order explains in detail the procedures

required for using the MVRs, and subsections B and C set forth

the circumstances in which recordings are mandatory.                      Because

both of these subsections are pertinent to our opinion, we quote

them both at length herein:

                    B. Recording Incidents.

                The   record   function   of   the MVR
           equipment is automatically initiated when
           the patrol vehicle's emergency lights are
           activated or the wireless microphone is
           turned on. Whenever the video recording has
           been activated officers shall ensure that
           the audio portion is also activated.

                Whenever  the   emergency  lights  are
           activated officers shall not deactivate the
           recording function of the MVR equipment
           except for dismounted posts or traffic
           details.

                An officer may manually activate the
           system at his/her discretion. This allows a
           recording to be made without alerting a
           potential violator as a result of activating
           the emergency lights.

                When   the    recording   function   is
           activated to document any incident or MV
           stop, the unit will not be deactivated until
           such time as the incident has been completed



                                      7                               A-4226-14T3
or the detained vehicle has been released
and the officer has called back in service.

     When    a   recording     function    has
documented an event that is a major criminal
incident involving serious injury, loss of
life,   or  catastrophic    property   damage,
neither the officer(s) involved, nor the
personnel   recording   the    incident   will
deactivate the MVR. Investigative Division
personnel or a Division Commander will
deactivate the MVR only when the event has
ceased.

     When    a   recording    function   has
documented a police involved shooting or use
of force by an officer(s) that results in
the serious bodily injury or death of
another person, the MVR will only be
deactivated at the direction of the officer
in charge of Professional Standards. Such
deactivation approval will be documented in
the CAD incident log.

     Notwithstanding any other provision of
this order, when an officer is involved in a
major criminal incident, is present at a
major crime scene, or both, a supervisor may
authorize the deactivation of the audio
portion of the MVR only when and if the
supervisor determines that the incident has
ceased and that it is no longer necessary to
properly document the incident.

     When an officer is requested to provide
information regarding an event that has been
captured on MVR equipment, the officer shall
be made aware of the existence of the MVR
and shall be given an opportunity to review
the recording prior to any statements.

     C.   Types  of   Incidents  to Record–
Officers using MVR equipped vehicles shall
record the following situations:




                      8                          A-4226-14T3
              All traffic stops, criminal enforcement
         stops,   motorist   aid  situations,   motor
         vehicle collisions, and pedestrian contacts
         in their entirety.

              The MVR will be activated prior to the
         initiation of the stop or detention and
         prior    to     the    officer    contacting
         communications to advise of the stop or
         detention,   unless   it    is  unsafe    or
         impracticable.

              If an officer fails to activate the MVR
         prior to the contact, the reason will be
         indicated in detail in the associated CFS
         entry.

              Whenever standardized field sobriety
         tests are conducted during a motor vehicle
         stop, the officer should when practicable
         adjust the MVR so as to allow for a visual
         record of the tests.

              At no time should the standardized
         field sobriety tests be conducted in the
         area immediately in front of the patrol
         vehicle.

              Police    pursuits    as     defined       by
         department policy.

              Major crime scenes.

              Situations which arise wherein the
         officer by reason of training or experience
         determines that the incident should be
         recorded.

              Any special   operation    that   should   be
         documented.

The order also establishes review procedures for MVR recordings

and, essentially, provides that recordings may be reviewed to




                               9                              A-4226-14T3
assess the performance of the officer, his need for further

training, or his satisfactory performance of his duties.

       As   Sergeant      Ryan    set   forth       in     his      certification,          the

"recording"        function      of   the     MVR     in       a    patrol     vehicle       is

"automatically initiated when the patrol vehicle's lights are

activated."        Also, when an MVR has recorded the "use of force by

an officer that results in the serious bodily injury or death of

another person," it shall "only be deactivated at the direction

of the officer in charge of Professional Standards."

       Following      oral     argument,          Judge     Grasso       issued      written

opinions     on    July   31   and    October       2,     2014.         In   his    July    31

opinion,     the    judge      concluded      that       the       MVR   recordings       were

government records, but, at that point in the proceeding, the

OCPO   had    failed      to   carry    its       burden       to    produce        specific,

reliable evidence establishing that the recordings were exempt

from     disclosure       as   "criminal          investigatory          records"       under

N.J.S.A.     47:1A-1.1.           See   Courier           News      v.    Hunterdon       Cty.

Prosecutor's       Office,     358    N.J.    Super.       373,      382–83    (App.     Div.

2003).

       Moreover, Judge Grasso held that the recordings were not

exempt from disclosure as pertaining to an "investigation in

progress," N.J.S.A. 47:1A-3(a), because any investigations of

the driver of the vehicle or the officer "began after the video




                                             10                                      A-4226-14T3
was made."     The judge explained that under the specific terms of

N.J.S.A. 47:1A-3(a), "the ongoing investigation exception does

not work retroactively to render public documents confidential

once an investigation begins."             He then held that the traffic

stop, having been made at 11:00 a.m. in a public parking lot,

did   not    entitle   the   driver   to   a   "reasonable   expectation    of

privacy in the video."

      Judge Grasso concluded his opinion by adjourning the case

until September 2014 to permit the OCPO to submit "supplemental

briefs,      certifications    and    evidence"     on   whether   the     MVR

recordings were exempt under N.J.S.A. 47:1A-1.1 as a "criminal

investigatory record."

      On October 2, 2014, Judge Grasso issued his second opinion,

following receipt of additional briefs and certifications from

the parties, as well as conducting an in camera review of the

MVR recordings.        In that opinion, he decided that because the

Barnegat Police Chief had issued a standing order requiring the

use of MVRs during motor vehicle stops, and at such times as the

patrol      officers   had    activated     their   overhead   lights,     the

recordings were required by law to be made and maintained and,

thus, were not "criminal investigatory records" as defined under

N.J.S.A. 47:1A-1.1.




                                      11                            A-4226-14T3
    Citing O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371,

383–84   (App.     Div.    2009),      Judge    Grasso       determined    that     the

"binding and enforceable" nature of the general order issued by

the Barnegat Police Chief, carried with it the "force of law"

for the making and maintaining of MVR recordings in municipal

patrol vehicles.       He explained that the general order had been

issued in accordance with the delegation of power provided by

the Legislature under N.J.S.A 40A:14-118.

    Further,       Judge    Grasso      rejected       the    argument     that     the

Attorney General's Guidelines on Internal Affairs Policies and

Procedures exempted the recordings from disclosure, reasoning

that the recordings were made before and not as part of the

internal     affairs      investigation.          After       reviewing     the     MVR

recordings in camera, he also determined that the driver did not

have a reasonable expectation of privacy that might otherwise

justify withholding public access.              The judge explained that the

stop took place in a public area, and the recordings did not

disclose anything of a highly personal nature.

    Finally, Judge Grasso found no basis to deny access to the

recordings    because      the   OCPO     had    not    yet    released     the     MVR

recordings    as   part     of   its    criminal       discovery.         Because    he

determined that the MVR recordings were accessible under OPRA,




                                         12                                  A-4226-14T3
the judge did not reach the question whether the recordings

would have to be disclosed under the common law.

    Subsequently, Judge Grasso entered an order memorializing

his October 2 decision, granting judgment in favor of plaintiff

on his OPRA claim, directing the OCPO to grant access to the MVR

recordings, and dismissing the common law count as moot.               After

reviewing a fee application, the judge awarded plaintiff $27,560

in attorney's fees and costs.

    This appeal followed.

                                     II.

    On appeal, the       OCPO makes nine arguments: (1) the OPRA

burden of proof does not apply to the MVR recordings; (2) the

MVR recordings are criminal investigatory records and, thus, not

government   records;   (3)   even    if   the   records   are   government

records, they are exempt from disclosure under executive orders

issued by Governor Whitman; (4) the records are exempt from

disclosure as an investigation in progress; (5) the records are

exempt as discovery materials; (6) the records are exempt under

privacy   provisions    of   OPRA;   (7)   the   records   should   not    be

disclosed under the common law; (8) plaintiff was not entitled

to an attorney's fee award; and (9) the trial judge committed

error in awarding attorney's fees.         The Attorney General and the




                                     13                             A-4226-14T3
Prosecutors Association join in arguments two, four, six, and

seven.

                                           A.

    We     review    a     trial      judge's     legal   conclusions        concerning

access to public records under OPRA de novo.                       Drinker Biddle &

Reath, LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super.

489, 497 (App. Div. 2011).               We will not disturb factual findings

as long as they are supported by adequate, substantial, and

credible evidence.          See Meshinsky v. Nichols Yacht Sales, Inc.,

110 N.J. 464, 475 (1988).                 If a court conducts an in camera

review of documents and engages in a balancing of interests in

connection    with    a    common-law-based         request     to       inspect    public

records,     we    apply     a    more     deferential     standard         of     review.

Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App.

Div.), certif. denied, 133 N.J. 429 (1992).                      Nevertheless, "to

the extent [the appellate court] can be said to be reviewing

essentially a legal determination, [it] can review the documents

which the trial judge ordered disclosed."                  Ibid.

    New    Jersey     has    traditionally         maintained        a   strong     public

policy that "government records shall be readily accessible for

inspection,       copying,       or   examination    by   the   citizens         of    this

State."      N.J.S.A.      47:1A-1.         The    OPRA   statute        ensures,      with

exceptions, that "all government records shall be subject to




                                           14                                      A-4226-14T3
public access."        Ibid.        A person who is denied access to a

government record may challenge the denial in Superior Court.

N.J.S.A. 47:1A-6.         In OPRA cases, the records custodian has the

burden to show that its denial of access was authorized by law.

See Asbury Park Press v. Monmouth Cty., 406 N.J. Super. 1, 7

(App. Div. 2009) (citing N.J.S.A. 47:1A-6), aff'd, 201 N.J. 5

(2010).

      The threshold question in an OPRA claim is whether the

plaintiff     has   requested   "government        records"    pursuant    to   the

statute.       O'Shea,     supra,    410    N.J.   Super.     at   380   (citation

omitted).      The statute broadly defines a "government record" as:

              [A]ny   paper,   written   or   printed   book,
              document, drawing, map, plan, photograph,
              microfilm, data processed or image processed
              document, information stored or maintained
              electronically or by sound-recording or in a
              similar device, or any copy thereof, that
              has been made, maintained or kept on file in
              the course of his or its official business
              by   any   officer,   commission,   agency   or
              authority of the State or of any political
              subdivision thereof . . . .

              [N.J.S.A. 47:1A-1.1.]

      Clearly, then, the MVR recordings at issue in this case fit

within this broad definition and thus are presumptively "subject

to   public     access"    unless    they    are    expressly      exempted     from

disclosure.




                                        15                                A-4226-14T3
    In deciding whether the records in this case are exempt

from disclosure, we first address the burden of proof arguments

raised by the OCPO.     We then address the "criminal investigatory

records" exemption, as well as the "investigation in progress"

exception.    We concur with Judge Grasso's well-reasoned opinions

rejecting    the   "criminal   investigatory   record"    exemption   set

forth in OPRA, as applied to the facts of this case, as well as

the "investigation in progress" exception, and, therefore, we

affirm the judgment of the Law Division.        We also address other

OPRA provisions raised by the OCPO and amici, and we conclude

that they do not apply to the facts herein.        Finally, we reject

the remaining arguments on appeal as without sufficient merit to

warrant discussion in a written opinion.

                                   B.

    As we noted earlier, "OPRA provides for ready access to

government records by the citizens of this State."            Burnett v.

Cty. of Bergen, 198 N.J. 408, 421–22 (2009) (citing Mason v.

City of Hoboken, 196 N.J. 51, 64–65 (2008)).             "The purpose of

OPRA is to maximize public knowledge about public affairs in

order to ensure an informed citizenry and to minimize the evils

inherent in a secluded process."        Times of Trenton Publ'g Corp.

v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)

(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office,




                                   16                           A-4226-14T3
374 N.J. Super. 312, 329 (Law Div. 2004)).                     Accordingly, OPRA

directs that "all government records shall be subject to public

access unless exempt," and that "any limitations on the right of

access . . . shall be construed in favor of the public's right

of access."       N.J.S.A. 47:1A-1.       "Consistent with those aims, the

statute broadly defines government records to include documents

made, maintained or kept in the course of official government

business, but exempts twenty-one categories of information from

the   definition."       Burnett,       supra,    198   N.J.    at       422   (citing

N.J.S.A. 47:1A-1.1).

      OPRA places on the custodian of the records "the burden of

proving    that    the   denial    of    access    is   authorized            by   law."

N.J.S.A. 47:1A-6.        Specifically, OPRA states that "[a] person

who   is   denied    access   to    a    government     record       .    .    .    may:

institute a proceeding to challenge the custodian's decision by

filing an action in Superior Court . . . [and t]he public agency

shall have the burden of proving that the denial of access is

authorized by law."       Ibid.

      Here, the OCPO argues that when the records fall within a

statutory exemption under OPRA, the public agency must make only

a facial showing, and then the burden shifts to the requester.

We reject this argument because it is inconsistent with the

statute and existing case law.




                                        17                                     A-4226-14T3
       OPRA unequivocally states that "[t]he public agency shall

have   the    burden     of   proving      that           the   denial   of    access    is

authorized by law."             N.J.S.A. 47:1A-6.                Consistent with the

plain language of OPRA, the burden of proof is on the government

entity seeking to deny access.                  See, e.g., O'Shea, supra, 410

N.J. Super. at 380–81 (acknowledging that the government agency

has    the    burden     even       when   asserting             that    the     "criminal

investigatory record" exemption applies); Courier News supra,

358 N.J. Super. at 382-83 ("Under OPRA, a public agency seeking

to restrict the public's right of access to government records

must produce specific reliable evidence sufficient to meet a

statutorily recognized basis for confidentiality.").

       The OCPO argues that two cases stand for the proposition

that the public agency need only make a facial showing, and that

the burden then shifts to the party seeking access.                              See Educ.

Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 286–87 (2009), and

Michelson v. Wyatt, 379 N.J. Super. 611, 621 (App. Div. 2005).

However,     we   find   that    neither        of    these     cases    stand    for   the

proposition advanced by the OCPO.

       In Education Law Center, the Supreme Court discussed a

qualified privilege and explained that after the governmental

agency     had    carried     its    burden          of    proof   to    establish      the

privilege, the requester could make a further showing that might




                                           18                                     A-4226-14T3
overcome the public agency's assertion of the privilege.                             Educ.

Law Ctr., supra, 198 N.J. at 287 (discussing the deliberative

process privilege).         In Michelson, the plaintiff sought medical

coverage information for every municipal employee, as well as

their claims histories – records, unlike those at issue here,

clearly not subject to OPRA disclosure.                    Michelson, supra, 379

N.J. Super. at 615; N.J.S.A. 47:1A-10.                    We held that "when the

requested       material     appears      on       its     face        to     encompass

legislatively       recognized     confidentiality             concerns,      a      court

should presume that the release of the government record is not

in   the    public    interest."         Id.       at    621     (emphasis        added).

Accordingly, we reject the argument advanced by the OCPO.1

                                         C.

     The    OCPO,     the    Attorney        General,      and    the       Prosecutors

Association     argue   that    the    MVR    recordings         in   this    case      are

excluded from OPRA under the "criminal investigatory record" and

"investigation in progress" exemptions.                   Plaintiff and the ACLU

contend that the OCPO failed to carry its burden of proving

either     of   these      exclusions,       and    the     MVR       recordings        are

government records to which the public has a right of access

1
  Additionally, the argument, even if it had any basis in the
law, begs the question because it assumes that the MVR
recordings are clearly exempted from disclosure under OPRA.
Obviously, the recordings are not clearly exempt under the
statute given our analysis.



                                         19                                       A-4226-14T3
under OPRA.        While these two exclusions overlap as applied to

criminal investigations, they are distinct, and we will evaluate

them separately.

              1. The Criminal Investigatory Records Exemption

    As we explained above, OPRA broadly defines a government

record   to    include    any    document,    photograph,   or    image    "made,

maintained or kept" by, among others, a municipality in the

course of its official business.              N.J.S.A. 47:1A-1.1.         It then

declares,      however,    that     "[a]     government   record    shall       not

include" various categories of "information which [are] deemed

to be confidential."            Ibid.   One such category is a "criminal

investigatory      record,"      defined     as   "a   record    which    is    not

required by law to be made, maintained or kept on file that is

held by a law enforcement agency which pertains to any criminal

investigation or related civil enforcement proceeding."                        Ibid.

Thus, to prove that a record is a criminal investigatory record,

the public agency must show that the record: (1) is not required

by law to be made and (2) pertains to a criminal investigation

or related civil enforcement proceeding.                  O'Shea, supra, 410

N.J. Super. at 380–81.

    We      have    addressed     the   "criminal      investigatory      record"

exemption in two cases that have reached different conclusions

regarding the first element in the definition of                    a criminal




                                        20                                A-4226-14T3
investigatory record; that is, the record "is not required by

law to be made, maintained, or kept . . . by a law enforcement

agency."      See N. Jersey Media Grp. v. Twp. of Lyndhurst, 441

N.J. Super. 70, 95–96 (App. Div.), leave to appeal granted, 223

N.J.   553    (2015),     and   O'Shea,    supra,     410      N.J.   Super.    at    381

(quoting N.J.S.A. 47:1A-1.1).              We shall examine these cases to

determine if they are reconcilable, and we will then review the

record in light of our conclusions respecting the scope of this

phrase.

       In undertaking this task, we are mindful that "our goal is

to    interpret    the    statute      consistent     with      the   intent    of    the

Legislature."       Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,

568    (2008).           Applying      well-settled           rules   of    statutory

construction, "we give a statute's words and phrases their usual

and ordinary meaning, N.J.S.A. 1:1-1, because the words of a

statute      ordinarily      provide    the    most     reliable      indication      of

legislative       intent."      Cty.     of    Bergen    Emp.     Benefit      Plan   v.

Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 132

(App. Div. 2010).         "When the language in a statute is clear and

unambiguous,      and    susceptible      to   only     one    interpretation,"       we

presume the Legislature meant what it said and that the plain

meaning governs.         Burnett, supra, 198 N.J. at 421.




                                          21                                   A-4226-14T3
       We   are    also    guided     by   the     statutory     command     that   OPRA

"shall be construed in favor of the public's right of access."

Fair Share Hous. Ctr., Inc. v. N.J. State League of Municips.,

207 N.J. 489, 501 (2011) (quoting N.J.S.A. 47:1A-1).                         Where the

statute is unclear, the Court has resolved any ambiguities in a

manner consistent with its broad purpose.                        Id. at 502; Sussex

Commons Assocs. v. Rutgers, 210 N.J. 531, 540–41 (2012).

       We remain mindful that "OPRA's clear purpose . . . is to

maximize      public      knowledge    about      public     affairs    in   order     to

ensure an informed citizenry and to minimize the evils inherent

in a secluded process."             Educ. Law Ctr., supra, 198 N.J. at 284

(citation      omitted).          "OPRA's        promise    of     accessible    public

records enables citizens and the media [to] play a watchful role

in   curbing      wasteful    government         spending    and    guarding    against

corruption and misconduct."                Sussex Commons, supra, 210 N.J. at

541 (alteration in original) (citation omitted).

       In O'Shea, we affirmed the trial court's order requiring

the municipality to provide access to the "use of force reports"

(UFRs) from its police department.                       O'Shea, supra, 410 N.J.

Super. at 388.            We rejected the defendant's argument that the

UFRs   were    exempt      from     disclosure      as     "criminal    investigatory

records" under N.J.S.A. 47:1A-1.1, or that they were shielded

from disclosure as records pertaining to "an investigation in




                                            22                                  A-4226-14T3
progress" by a public agency under N.J.S.A. 47:1A-3(a).                           Id. at

384–86.

       In addition, we found that the Attorney General's Use of

Force Policy requiring the completion of UFRs by local police

departments,        issued    pursuant       to     N.J.S.A.    52:17B-98,       had    the

force of law.          Id. at 384.       Accordingly, we held that the UFRs

were not criminal investigatory records and were not exempt from

access under OPRA.           Id. at 385–86.

       In   so    holding,     we    rejected       the    argument     that    case    law

decided under OPRA's predecessor statute, the Right-to-Know Law

(RTKL), L. 1963, c. 73, repealed by OPRA, L. 2001, c. 404,

provided         guidance     on      interpreting          OPRA's     definition        of

government records and exemptions to that definition.                             Id. at

381.    We explained that the RTKL "strictly defined" the phrase,

"required by law," and was repealed expressly because it was

"less encompassing" in allowing public access to records than

the public policy of New Jersey required.                     Ibid.

       Now,   OPRA     expresses      this     State's       public    policy   favoring

transparency        in      government       and      disclosure        of     government

documents.          N.J.S.A.        47:1A-1.         The     statute    endeavors       "to

maximize      public      knowledge     about       public    affairs."         Times    of

Trenton,         supra,      183     N.J.      at     535      (citation        omitted).




                                             23                                  A-4226-14T3
Accordingly,      our     rejection          of     the        OCPO's       arguments      was

consistent with both the letter and the purpose of the statute.

      In North Jersey Media Group, another panel of the appellate

division rejected O'Shea's position and concluded that "it is

appropriate      to    interpret       the     criminal         investigatory        records

exception in OPRA" by looking at "pre-OPRA case law interpreting

the   RTKL's     'required       by     law'       standard       in     cases   involving

requests for records pertaining to criminal investigations."                                 N.

Jersey   Media    Grp.,       supra,    441       N.J.    Super.       at   96   (expressly

disagreeing with that portion of O'Shea that held the RTKL was

inapplicable).

      That    case      involved       an    OPRA       request        seeking   extensive

records from local, county, and state law enforcement agencies

concerning a fatal police shooting of a criminal suspect.                                  Id.

at 81–82.      Among the records sought therein were police MVR

recordings.           Ibid.      Writing          for    the    court,       Judge    Ostrer

explained that a record is "required by law to be made" if its

creation is "mandated by a statute, regulation, executive order,

or judicial decision."           Id. at 97.             Thus, the court held that a

record subject to "a generic record retention policy, or an

internal agency directive of a public official" is not one that

is required to be made by law.               Ibid.




                                             24                                      A-4226-14T3
     While there is much in North Jersey Media Group with which

we   agree,    and   we   laud    Judge       Ostrer's   impressive    exegesis

concerning OPRA's legislative history, we find it unnecessary at

this point to engage in a detailed dissection of the many issues

that the opinion dealt with because we disagree with three of

the conclusions that our colleagues drew from their examination

of the facts and the legislative history of OPRA.

     First,     we   disagree    with    the    conclusion   that     the   floor

amendment     proposed    by   Senator    Martin    to   Assembly   Bill    1309,

which was adopted as part of the OPRA statute "restored, with

respect to criminal investigatory records, the RTKL's 'required

by law' standard," Id. at 95, and thereby justified a narrow

interpretation of the phrase.            Indeed, at a hearing before the

Senate Judiciary Committee on March 9, 2000, respecting public

access to government records, Senator Martin remarked:

            The problem with the [RTKL] is that it only
            requires . . . documents that are required
            by law to be made public . . . . The
            statute, in other words, is very narrow in
            its form. And what has happened is that many
            records, which the public, I think, would
            expect to be made available to them, are not
            required to be made . . . . And so it
            creates an enormous loophole . . . .

            . . . I fundamentally believe that                  the
            public is entitled to the records of                its
            government . . . .

            [Issues   dealing  with  public  access  to
            government records: Hearing on S. 161, 351,



                                         25                             A-4226-14T3
            573, and 866 Before the S. Judiciary Comm.,
            2000 Leg., 209th Sess. 1-2 (N.J. 2000)
            (statement of Sen. Robert J. Martin, Member,
            S.   Comm.   on   RTKL   precluding  certain
            documents from public access).]

Given this statement, the legislative history of the statute,

and OPRA's express mandate that it must be construed in favor of

public access, N.J.S.A. 47:1A-1, it is anomalous to suggest that

the phrase "required by law" nonetheless must be interpreted to

broaden the scope of documents concealed from public view.                     See

N. Jersey Media Grp., supra, 441 N.J. Super. at 96–97.

      Second, we disagree with the conclusion that the issuance

of a directive by the Attorney General, like that considered in

O'Shea, which required local police departments to prepare and

complete UFRs, are merely "internal agency directives on record

retention or creation" not within the meaning of "required by

law" under OPRA.        Id. at 97.      The Attorney General's directive

is not a prescription for the mechanism of storage or retrieval

of   documents;   rather,    it    is    a   clear     expression   of     policy

pertaining to citizen encounters with members of law enforcement

agencies.

      An Attorney General directive that is binding upon a local

police      department     which     requires         the   recordation        and

memorialization    of    incidents      where   the    police   have   employed

physical force against a citizen is not, in our view, an example




                                        26                               A-4226-14T3
of a "generic record retention policy."                  Further, the suggestion

that     by     recognizing     such       Attorney     General     directives     as

"required by law" gives rise to an anomaly in that an agency may

thereby "both require the making of a document, and exempt it

from access," id. at 103, is simply puzzling and, in any event,

not a persuasive reason for allowing a governmental agency to

hide the reports.

       Third, we disagree with the suggestion that an officer's

decision      to    activate    an   MVR    to    document    a   traffic   stop   or

pursuit of a suspected criminal violation of the law may make

the recording "pertain to a criminal investigation, albeit in

its earliest stages."            Id. at 105.            Such a broad suggestion

implies too much, in our view; would be factually inaccurate in

most instances; and certainly is not true where, as here, the

MVR automatically starts when the officer simply activates his

overhead lights.

       Accordingly, we part ways with the holding of North Jersey

Media Group, and we are persuaded that the rationale we employed

in     O'Shea      is   more   consistent        with   the   legislative    intent

expressed in OPRA.             We return now to a consideration of the

matter at hand.

       Here, the Law Division held that the MVR recordings were not

"criminal investigatory records" because the recordings were, in




                                           27                               A-4226-14T3
fact, "required by law" to be made.                     In reaching that conclusion,

the judge reasoned that the order of the Barnegat Township Police

Chief, requiring all officers to activate MVRs when making a

traffic or law enforcement stop, was authorized by statute and

unequivocally         binding       upon        the    police          officers       within    the

department, and thus had the force of law.                             We agree.

     When       the    facts       of    this    case       are       examined,    whether       one

employs the rationale of O'Shea or considers the Legislature's

intent    as   revealed       in    the        legislative           history    and    the     plain

language of OPRA, the MVR recordings were clearly required by law

to be made.         A record required by a local law enforcement order,

issued pursuant to the delegation of power provided by N.J.S.A.

40A:14-118, is the equivalent of a record required by law.

    While O'Shea dealt with an Attorney General directive that

applied    statewide,         410       N.J.    Super.          at    382   (citing     N.J.S.A.

52:17B-97 to -117; In re Gen. Discip. Hearing of Carberry, 114

N.J. 574, 577–78 (1989); In re Carroll, 339 N.J. Super. 429, 439

(App. Div.), certif. denied, 170 N.J. 85 (2001)), and here we

consider       an     order     issued          by     the       police        chief     of     one

municipality,         such    distinction            does       not    warrant    a    different

result.    That       is,     in        our    view,        a    distinction          without     a

difference.         The chief had the statutory authority to issue the

order, and it is clearly binding and enforceable on the members




                                                28                                       A-4226-14T3
of the department.       We do not consider that simply because the

order does not have statewide application, it is not "required

by law."2

      Our dissenting colleague concludes that the chief's order

does not constitute a "law" because it does not have "statewide

application" and was "only issued by a local police chief."                   In

reaching this conclusion, our colleague apparently adopts the

rationale of North Jersey Media Group that a record is "required

by   law"   only   if   it   is   "mandated    by   a   statute,   regulation,

executive order or judicial decision" that applies statewide.

N. Jersey Media Grp., supra, 441 N.J. Super. at 97.

      At the outset, we point out that our conclusions are rooted

in the record created by the OCPO to justify its decision to

refuse release of the MVR recordings.               Our holding is that the

OCPO did not meet its burden of proof to show that an exemption

to disclosure applies under OPRA.             The failure of proof is thus

a critical part of our holding herein, which our dissenting

colleague does not address.

      Our research discloses that the phrase "required by law" is

contained within 435 statutes, and has been employed over 700

2
  We note that further guidance on the scope of the "criminal
investigatory records" exemption to OPRA may be provided because
our Supreme Court has granted leave to appeal in North Jersey
Media Group. See N. Jersey Media Grp. v. Twp. Of Lyndhurst, 223
N.J. 553 (2015).



                                      29                              A-4226-14T3
times by the Supreme Court and the Superior Court in reported

decisions.     The very ubiquity of the phrase makes it impossible

to ascribe a precise definition to the word "law," and therefore

we must derive its meaning from the "context in which it was

employed."     Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 230

(1963).3

     Unlike our colleagues in North Jersey Media Group, and our

dissenting colleague here, we perceive no reason to support the

conclusion that the intent of the Legislature in enacting OPRA

would have restricted the phrase to statutes or regulations with

statewide     application.             Our     understanding      is     that     the

Legislature    wished       to   shield   from    disclosure     those    materials

reflecting      the        professional        judgments   and         efforts        of

investigators     and      others   employed      within   the    context        of    a

criminal investigation where such disclosure would compromise

their   efforts       or    endanger      witnesses   or   others        identified

therein.     Cf. Irval Realty Inc. v. Bd. of Pub. Util. Comm'rs, 61

N.J. 366 (1972).           However, the Legislature manifestly did not

intend to exclude from disclosure those materials that must be

3
   Our dissenting colleague notes that "law" is "generally
understood to include duly enacted statutes, ordinances, [and]
regulations . . . ."    Nonetheless, a municipal ordinance, of
course, cannot have "statewide application," and, therefore,
could not have been what the "Legislature had in mind" in
employing the word here, our colleague concludes without
explanation.



                                          30                               A-4226-14T3
generated    in     accordance       with      established     authority    and,

consequently, would not reflect the professional judgments and

discretionary efforts of law enforcement officers.

    Given the context in which the phrase "required by law" is

employed by OPRA, the MVR recordings – which, in accordance with

the chief's highly detailed order, are generated automatically

whenever an officer activates the overhead lights in the police

vehicle - fall within the latter category.                We need no further

explanation, lest we needlessly repeat our earlier conclusions.

        Judge Grasso did not address the second component of the

criminal investigatory record exemption; that is, whether the

MVR recordings pertained to a criminal investigation.                 Given the

sparse record created by the OCPO in support of its election to

deny public access to the MVR recordings, there is little to

commend a remand to the Law Division for further consideration

of that issue.      The burden of proof on this issue, as we have

explained,    was    the     OCPO's       obligation.         The   unexplained,

conclusory statements of Detective Halliday do not constitute

"specific    reliable      evidence"      justifying    the    conclusion   that

these   records   "pertain"     to    a   criminal     investigation,   thereby

mandating their exemption from disclosure.               Courier News, supra,

358 N.J. Super. at 382–83.            Thus, the OCPO failed to carry its

burden on this issue.




                                          31                            A-4226-14T3
       Addressing        MVR     recordings,     as    we   noted      earlier,      our

colleagues       in   North    Jersey    Media    Group     reasoned,        "when   an

officer turns on [an MVR] to document a traffic stop or pursuit

of a suspected criminal violation of law, that recording may

pertain     to   a    criminal   investigation,        albeit    in    its   earliest

stages."     N. Jersey Media Grp., supra, 441 N.J. Super. at 104–

05.    Nonetheless,       that    case   did     not   address    the    facts    that

obtain here: the automatic activation of the MVR whenever the

patrol vehicle switched on its overhead lights.                   Accordingly, we

cannot conclude on this record that the Barnegat officers were

investigating anything when the lights were activated.

      In O'Shea, Judge Kestin, writing for the court, reasoned:

             In the absence of a factual showing that any
             of the reports sought in this matter
             pertained    to     an    actual    criminal
             investigation or to an existing related
             civil enforcement proceeding, we decline to
             adopt the position urged by defendant that
             UFRs should, generically, be regarded to be
             shielded from public access as records
             [pertaining to an investigation].

             [O'Shea, supra, 410 N.J. Super. at 385.]

      The    certifications        of    Detective       Halliday       stated,      in

conclusory fashion, that the "video recording pertains to two

ongoing, active criminal investigations . . . .                       The video also

pertains to two separate internal affairs investigations of [the

Tuckerton police officer] . . . ."               These bald statements, as we




                                         32                                   A-4226-14T3
have noted, are hardly the type of evidence which would compel

our adoption of their conclusions.

       The existing record makes clear that the MVR recordings

were   made   before    there     was   any   contemplation     of    a   criminal

investigation concerning the Tuckerton police officer.                     Further,

given the mandate of the general order of the Barnegat Police

Chief, it is abundantly clear that the MVR recordings were not

initiated as part of an investigation into a suspected eluding,

but rather the recordings commenced simply because the Barnegat

officers activated their overhead lights.

       The Attorney General suggests that this record allows us

to   reach    the    opposite    conclusion      inferentially       because     the

incident     began   with    a   vehicle     failing   to   stop   in     Tuckerton

Borough, and the Barnegat police were notified when the vehicle

was being pursued.          This, indeed, is the conclusion reached by

our dissenting colleague.           We reject that conclusion, however,

given the OCPO's utter failure to adduce any evidence in the Law

Division that the officers here departed in any way from the

mandate of the general order.            Moreover, the purpose of the MVR

recordings, as explained by the police chief in the general

order, militates against this conclusion.                   Therein, the chief

explained that the recordings are primarily intended to protect

the officers in the discharge of their official duties and serve




                                        33                                 A-4226-14T3
as a training device, rather than fulfill an investigatory or

evidentiary function.

                2. The Investigation in Progress Exception

      The       "investigation        in    progress"        exception    to     OPRA      is

defined in N.J.S.A. 47:1A-3 and provides that:

                Notwithstanding the provisions of [OPRA],
                where it shall appear that the record or
                records which are sought to be inspected,
                copied, or examined shall pertain to an
                investigation in progress by any public
                agency, the right of access provided for in
                [OPRA] may be denied if the inspection,
                copying or examination of such record or
                records shall be inimical to the public
                interest;   provided,  however,   that   this
                provision shall not be construed to allow
                any public agency to prohibit access to a
                record of that agency that was open for
                public inspection, examination, or copying
                before the investigation commenced.

                [N.J.S.A. 47:1A-3(a).]

      Consequently,         the       public      agency     must     prove    that     the

records: (1) pertain to an investigation in progress, and (2)

that their release would be inimical to the public interest.

Courier News, supra, 358 N.J. Super. at 380 (citation omitted).

Whether     a    record   is    "inimical      to      the   public    interest"      is    a

determination        that      must    be    made      on    a   case-by-case      basis.

Moreover, the need for confidentiality declines after the close

of   the    investigation.            Keddie      v.   Rutgers,     148   N.J.    36,      54

(1997).




                                             34                                  A-4226-14T3
      Here, Judge Grasso held that the MVR recordings preceded

any   investigation      and,    thus,    the    "investigation       in   progress"

exception   did    not    apply.         See    N.J.S.A.   47:1A-3(a)       ("[T]his

provision shall not be construed to allow any public agency to

prohibit access to a record . . . that was open [to the public]

before the investigation commenced.").

      Given the record before us, Judge Grasso properly held that

the video preceded any investigation.               Moreover, although he did

not explicitly address the second prong of this exception                            –

whether disclosure would be inimical to the public interest –

Judge Grasso's examination of the MVR recordings, like ours,

does not support a conclusion that their release would meet that

standard.     Detective         Halliday's      unsupported     and    unexplained

statements in his September 2014 certification are insufficient

to create a fact issue for further consideration on a remand.

Accordingly, we decline to remand on this issue given the record

made by the OCPO.

            3. Remaining Arguments

      Finally,    we   address     the    OCPO's    arguments    concerning       the

applicability of other OPRA exclusions because those exclusions

are not applicable to the facts of this case.




                                          35                                A-4226-14T3
                                                 a.

      The OCPO argues that the MVR recordings are excluded from

public access under the executive order exemption.                            See N.J.S.A.

47:1A-9(a) ("The provisions of this act . . . shall not abrogate

any   exemption        of    a    public        record    or    government     record    from

public access heretofore made pursuant to . . . Executive Order

of the Governor . . . .").                       It then cites an executive order

issued   by     Governor         Whitman        that    exempted    "fingerprint       cards,

plates    and     photographs             and     similar       criminal      investigation

records that are required to be made, maintained or kept by any

State or local governmental agency."                           Exec. Order No. 69 (May

15, 1997), Laws of New Jersey 1997, Vol. 2 at 2321.

      However,     the       OCPO         did    not     raise     the    executive     order

exemption before the trial court.                       "Generally, issues not raised

[before the trial court], even constitutional issues, will not

ordinarily        be        considered           on      appeal      unless     they       are

jurisdictional         in        nature     or    substantially          implicate     public

interest."        State v. Walker, 385 N.J. Super. 388, 410 (App.

Div.) (citing Nieder v. Royal Indem. Ins., 62 N.J. 229, 234

(1973), and Ferraro v. Demetrakis, 167 N.J. Super. 429, 431–32

(App.    Div.),    certif.          denied,        81    N.J.     290    (1979)),     certif.

denied, 187 N.J. 83 (2006).                     On the other hand, "[a]n issue not

raised below may be considered by th[is] court it if meets the




                                                 36                                  A-4226-14T3
plain error standard or is otherwise of special significance to

the   litigant,     to    the   public,          or    to   achieving    substantial

justice, and the record is sufficiently complete to permit its

adjudication."      Ibid.

      Here,   the    OCPO    may     not        rely   on   the   executive    order

exemption.    While the exemption implicates the public's interest

in the access to public records, the OCPO, as the governmental

agency denying access, had an obligation to raise this argument

within a reasonable time.            OPRA proceedings are designed to be

summary proceedings with the goal that records be produced in a

reasonable time to the public.                   Mason, supra, 196 N.J. at 69

("[C]itizens are entitled to swift access to public records, and

both the public and governmental bodies are logically entitled

to have any disputes brought and addressed in the same, rapid

manner."); see also N.J.S.A. 47:1A-6 (action filed in Superior

Court must "proceed in a summary or expedited manner"); N.J.S.A.

47:1A-5(i)    (public       agency    must        grant      or   deny   access    to

government record "as soon as possible, but not later than seven

business days").         Consequently, we decline to afford the OCPO,

as the governmental agency, the unfair advantage of raising a

new exclusion for the first time on appeal or remand, especially

given Judge Grasso's adjournment of the return date of the order




                                           37                               A-4226-14T3
to show cause to allow the parties additional time to marshal

and submit "supplemental briefs, certifications and evidence."

    Moreover,      in    light     of    the      OCPO's    failure    to    raise   the

executive order exemption below, this court shall not consider

whether any other circumstances warrant consideration of this

exemption on appeal.           See Walker, supra, 385 N.J. Super. at 410

(emphasizing that an issue not raised in the trial court should

not be considered on appeal).

                                             b.

    The OCPO also argues that the MVR recordings are unfiled

discovery,    which      is    protected          by   N.J.S.A.    47:1A-9(b)       as   a

"privilege    or      grant      of      confidentiality"           established          or

recognized by judicial case law, and thus is not required to be

disclosed.      We      have    recognized         that     OPRA   incorporates      the

confidentiality         afforded        to     unfiled       discovery       materials.

Drinker   Biddle,     supra,     421     N.J.      Super.    at    497–98;    see    also

Estate of Frankl v. Goodyear Tire & Rubber Co., 181 N.J. 1, 10

(2004) (citations omitted) ("The universal understanding in the

legal community is that unfiled documents in discovery are not

subject to public access.").                 In Drinker Biddle, we held that

when a public agency received discovery from a private party

during    litigation,     and    the     materials         were    never    filed,   the

materials remained confidential and inaccessible under OPRA even




                                             38                                A-4226-14T3
though the materials were then in the possession of a public

agency.      Drinker Biddle, supra, 421 N.J. Super. at 498.

       Here, the OCPO did not receive the MVR recordings through

discovery from a private party.                    Instead, the recordings were

made   by    a   governmental         agency   as     part   of     law    enforcement

training      activities        and    not     as     discovery      materials        for

litigation.      That the recordings have turned out to be relevant

discovery in subsequently filed criminal and civil actions does

not make them unfiled discovery within the meaning of N.J.S.A.

47:1A-9(b).

                                          c.

       The   OCPO   and   the    Prosecutors        Association      argue    that    the

trial court erred in determining that the public's interest in

disclosure of the video outweighed the driver's privacy interest.

We disagree.

       OPRA's privacy clause states that "a public agency has a

responsibility and an obligation to safeguard from public access

a    citizen's      personal     information         with    which    it     has     been

entrusted when disclosure thereof would violate the citizen's

reasonable expectation of privacy."                  N.J.S.A. 47:1A-1; see also

Burnett, supra, 198 N.J. at 427.               To balance competing interests

in   privacy     and   public     access,      a    court    must    apply    the     Doe

factors:




                                          39                                  A-4226-14T3
          (1) the type of record requested; (2) the
          information it does or might contain; (3)
          the potential for harm in any subsequent
          nonconsensual disclosure; (4) the injury
          from disclosure to the relationship in which
          the record was generated; (5) the adequacy
          of   safeguards   to   prevent   unauthorized
          disclosure; (6) the degree of need for
          access; and (7) whether there is an express
          statutory    mandate,   articulated    public
          policy, or other recognized public interest
          militating toward access.

          [Id. at 427 (quoting Doe v. Poritz, 142 N.J.
          1, 88 (1995)).]

This balancing exercise requires a case-specific analysis, and

appellate review of the trial court's application of the factors

is de novo.     In re N.J. Firemen's Ass'n, 443 N.J. Super. 238,

264 (App. Div. 2015) (citations omitted), certif. granted, 224

N.J. 528 (2016).

     In this case, the trial court reviewed the MVR recordings

in   camera   and   determined   that   the   driver   had   no   privacy

expectation that overcame the public's right of access.            Having

conducted an independent in camera review, and in consideration

of the Doe factors, we agree.      The recordings requested are from

MVRs in police vehicles.     The information contained relates to a

motor vehicle stop that took place in a public setting.                 The

recordings do not contain personal information about the driver.

Focusing only on the privacy interest, there is no potential

harm in any subsequent disclosure of the recordings because, if




                                   40                             A-4226-14T3
they are not excluded under OPRA, the public has a right to view

them.     There    is    also   no    injury      from    disclosure    to    the

relationship during which the recordings were made.                Drivers and

passengers in vehicles operating on public roadways do not have

a reasonable expectation of privacy in an MVR recording.                      The

reality of modern life is that video recordings are made in many

public places.     The other Doe factors also militate in favor of

public   access   as    compared     to    any   legitimate   expectation      of

privacy a driver might have.4

                                          d.

     The remainder of the arguments on appeal, including the

OCPO's   challenge      to   the     counsel     fee     award,   are   without

sufficient merit to warrant discussion in a written opinion.                   R.

2:11-3(e)(1)(E).       Furthermore, as we affirm the judgment of the

Law Division ordering the disclosure of the MVR recordings under

OPRA, we need not conduct a common law analysis.

     Affirmed.




4
  Plaintiff filed a motion to supplement the record with a letter
concerning the privacy issue.    We deny that motion because we
generally do not consider facts or materials that were not
presented to the trial court.      See Liberty Surplus Ins. v.
Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). Moreover, given
our resolution of the privacy issue, there is no need for a
consideration of the supplemental letter.



                                          41                            A-4226-14T3
_____________________________________

GILSON, J.S.C. (temporarily assigned), dissenting.

      The    majority       holds   that   an    order    issued    by    a   chief   of

police in one municipality makes MVR recordings "documents" that

are "required by law to be made" within the meaning of the Open

Public      Records    Act    (OPRA),      N.J.S.A.      47:1A-1    to    -13.        The

majority also holds that the MVR recordings did not pertain to a

criminal investigation of an eluding incident.                     Accordingly, the

majority concludes that the MVR recordings are not "criminal

investigatory records" under OPRA.                I disagree.      I would reverse

the order of the Law Division and hold that the MVR recordings

in   this    case     are    exempt   as    criminal      investigatory        records.

Thus, I would remand for a determination of whether the MVRs

recordings could be accessed under the common law, an issue the

Law Division never reached.

                                           I.

      The    facts     are    contained     in   certifications          submitted    in

connection with an order to show cause application.                           While the

record is based on a summary proceeding, certain material facts

are established by the record.

      This incident began with a driver eluding a police officer

in Tuckerton Borough and ended with the driver allegedly being

assaulted through the use of a police dog when the driver was
eventually stopped and arrested in Barnegat Township.                       There

were, thus, two separate and distinct criminal investigations:

(1) the driver's eluding and motor vehicle offenses; and (2) the

Tuckerton    police   officer's    alleged    misconduct      and   aggravated

assault concerning his use of a police dog during the arrest of

the driver.

       The MVR recordings at issue were made by dashboard cameras

in Barnegat Township police vehicles.               Given these facts the

only   logical    explanation     is   that   the   Barnegat     police      were

notified of the eluding incident as the car chase was headed

towards Barnegat.      Consequently, the responding Barnegat police

officers    who   activated   their    MVRs   did   so   in   response     to    an

ongoing eluding incident.

                                       II.

       The majority correctly points out that OPRA accords the

public a broad right of access to government records "to ensure

an informed citizenry and to minimize the evils inherent in a

secluded process."      Times of Trenton Publ'g Corp. v. Lafayette

Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury

Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super.

312, 329 (Law Div. 2004)).

       In enacting OPRA, however, the Legislature also recognized

that    certain    "confidential"       information      collected    by        the




                                        2                                A-4226-14T3
government      needed   to    be     exempted      from      disclosure.        N.J.S.A.

47:1A-1.1.         One   such       category       of     exempted     information       is

"criminal       investigatory        records."            Ibid.      OPRA    defines      a

"criminal       investigatory        record"      as     "a   record    which     is    not

required by law to be made, maintained or kept on file that is

held by a law enforcement agency which pertains to any criminal

investigation or related civil enforcement proceeding."                          Ibid.

      The majority correctly points out that the starting point

in interpreting a statute is to look at the plain language of

the statute.       See Acoli v. N.J. State Parole Bd., 224 N.J. 213,

227   (2016).         OPRA's        definition      of     "criminal      investigatory

record" makes clear that there are two factors that must be

shown by the public agency: (1) the record is not required by

law   to   be    made,   and    (2)    the       record    pertains    to   a    criminal

investigation or related civil enforcement proceeding.                           N.J.S.A.

47:1A-1.1;      see   also     N.    Jersey      Media     Grp.,   Inc.     v.   Twp.    of

Lyndhurst, 441 N.J. Super. 70, 90 (App. Div.), leave to appeal

granted, 223 N.J. 553 (2015); O'Shea v. Twp. of W. Milford, 410

N.J. Super. 371, 380-81 (App. Div. 2009).1


1
  I agree with the majority that the public agency bears the
burden to establish that a document or record is exempt under
OPRA. I also agree with the majority's holding that the driver
had no privacy expectations that overcame the public's right of
access.




                                             3                                   A-4226-14T3
                                                A.

      Turning to the first factor, the question is whether the

MVR recordings here were required by law to be made.                                 The Law

Division held, and the majority agrees, that the MVR recordings

were required by law to be made because the Barnegat Chief of

Police    had     issued      a    "general      order"     in    his     municipality       to

activate MVRs when there is a traffic or law enforcement stop.

I submit that the plain language of OPRA does not support the

conclusion that an order issued by a municipal chief of police

creates     a    "law"    requiring        a    document    to    be    made    within      the

meaning of OPRA.

      The       term     "law,"      though      given      a    variety       of    meanings

depending on its context, Seatrain Lines, Inc. v. Medina, 39

N.J. 222, 230 (1963), is generally understood to include duly

enacted         statutes,         ordinance,         regulations,         decisional        law

established        by    courts,      and       executive       orders.        Id.    at    231

(holding in context of the Temporary Disability Benefits Law,

the   word      "law"     meant     "statutory        law   or    common     law     rule    or

doctrine"); State v. Atlantic City Elec. Co., 23 N.J. 259, 270

(1957)    (stating        that     "the     rules     and   regulations        of    a   State

administrative agency, duly promulgated under properly delegated

powers,      have       the   force       and    effect     of    law");       Winberry      v.

Salisbury, 5 N.J. 240, 247-48 (holding that the word "law" in




                                                 4                                   A-4226-14T3
the phrase "subject to law" meant substantive as opposed to

procedural     law,    and    included       not        only    legislation         but   also

common law), cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L.

Ed. 638 (1950); State v. Duble, 172 N.J. Super. 72, 75 (App.

Div. 1979) (holding that it has long been recognized that "a

municipal resolution, unlike an ordinance, is not a law" and

that    "the    term     law       'when         used     without       restriction         or

qualification, refers to the public law of the state'" (first

citing then quoting In re Hague, 104 N.J. Eq. 31, 63 (Ch.),

aff'd by an equally divided court, 104 N.J. Eq. 369 (E. & A.

1929))); see also Clark v. Degnan, 163 N.J. Super. 344, 372

(App.   Div.    1978),       aff'd    as     modified,          83    N.J.    393    (1980).

Importantly, when counties or municipalities enact ordinances,

they do so only when the State Legislature expressly delegates

the authority for them to act.                   Holmdel Builders Ass'n v. Twp.

of Holmdel, 121 N.J. 550, 566 (1990).

       Consequently,     when      enacting        the     "criminal         investigatory

records"     exemption        in     OPRA,        the     Legislature         would       have

understood     the    term    "law"    to    include           duly   enacted    statutes,

regulations,     executive           orders,       and         decisional       case      law.

Moreover, since the Legislature was not delegating power under

OPRA to municipalities, there is nothing to suggest that it

would have contemplated ordinances.                     Even more clearly, nothing




                                             5                                       A-4226-14T3
in   the    plain      language     use    of       "law"    would    suggest     that   the

Legislature had in mind orders issued by a local police chief

that    did      not     go     through     any       legislative,        municipal,      or

regulatory review process.                  In other words, unlike laws and

regulations, the order that was issued here was issued by one

individual without any established process of review or comment

by the public.

       Both the Law Division and the majority point to N.J.S.A.

40A:14-118 as the statute that delegates the authority to the

chief      of   police     to     create    a       "law."      N.J.S.A.     40A:14-118,

however,        provides      a   specific          delegation       of   power    to    the

"governing body of any municipality" to create a police force;

it does not provide a chief of police authority to create law.

Specifically, that statute authorizes the "governing body of any

municipality, by ordinance," to create a police force, "provide

for a line of authority relating to the police function," and

appoint a chief of police.                Ibid.      N.J.S.A. 40A:14-118 then goes

on to state:

                Any    such    ordinance,    or  rules    and
                regulations, shall provide that the chief of
                police, if such position is established,
                shall be the head of the police force and
                that   he   [or   she]    shall be   directly
                responsible to the appropriate authority for
                the efficiency and routine day to day
                operations thereof, and that he [or she]
                shall, pursuant to policies established by
                the appropriate authority:



                                                6                                  A-4226-14T3
                   a. Administer and enforce rules and
                   regulations    and     special  emergency
                   directives for the disposition and
                   discipline   of    the    force and   its
                   officers and personnel;

                   b. Have, exercise, and discharge             the
                   functions, powers and duties of              the
                   force;

                   c. Prescribe the duties and assignments
                   of    all   subordinates   and    other
                   personnel;

                   d. Delegate such of his [or her]
                   authority as he [or she] may deem
                   necessary for the efficient operation
                   of the force to be exercised under his
                   [or her] direction and supervision; and

                   e. Report at least monthly to the
                   appropriate authority in such form as
                   shall be prescribed by such authority
                   on the operation of the force during
                   the preceding month, and make such
                   other reports as may be requested by
                   such authority.

Nowhere in N.J.S.A. 40A:14-118 did the Legislature expressly or

implicitly delegate to a chief of police authority to make a

"law."     While    the    Barnegat    Chief   of    Police    may    have   been

authorized to issue his order to the police officers working

under    him,   such   a   directive    does   not    become    a     law.     I,

therefore, disagree with the majority's holding that a record

required by a local law enforcement order "is the equivalent of

a record required by law."




                                       7                                A-4226-14T3
       OPRA's     legislative    history         also    does    not   support    the

conclusion that the term "law" should be read broadly.                     In North

Jersey Media Group, a panel of this court thoroughly analyzed

the Legislature's intent in enacting OPRA.                       N. Jersey Media

Grp., supra, 441 N.J. Super. at 93-97.                     As noted by both the

majority here and the panel in North Jersey Media Group, the

Legislature       expressed   its    concern        that     OPRA's     predecessor

statute, the Right-to-Know Law,                L. 1963, c. 73, repealed by

OPRA, L. 2001, c. 404, was too limited in providing access to

public records.      N. Jersey Media Grp., supra, 441 N.J. Super. at

93-94.      The    Legislature      thus       enacted    OPRA   with    its   broad

provisions to increase access to public records.                        Id. at 94.

The Legislature also created twenty-one exemptions, including

the    pre-existing     criminal      investigatory          records     exemption.

N.J.S.A. 47:1A-1.1; N. Jersey Media Grp., supra, 441 N.J. Super.

at 93-94.     The panel in North Jersey Media Group is persuasive

in    its   analysis    of    the    specific           legislative     history    in

concluding that the history of that exemption warrants a narrow

reading of the "required by law" factor.                 Id. at 97.

      The majority's conclusion that the word "law" deserves a

broad reading rests on the directive in                     N.J.S.A. 47:1A-1 to

construe the provisions of OPRA "in favor of the public's right

of access."       That provision, however, was not meant to eliminate




                                           8                                A-4226-14T3
the exemptions to OPRA.            To hold that an order issued by a

municipal chief of police makes a document required by law,

would, by logical extension, effectively eliminate the criminal

investigatory     records       exemption.          Applying     the    majority's

reasoning, any time there is a written directive calling for a

document to be created in a police department that document

would be required by law to be made and, thus, would not come

within the ambit of "criminal investigatory records."                         It is

hard   to   imagine   that      there   are   any       criminal    investigatory

documents created in a police department for which there is not

an order, directive or instruction calling for that document to

be   prepared.      For   example,      if    a    police      department    issued

instructions that officers were to prepare reports concerning

all criminal investigations, under the reasoning used by the

majority any and all such reports would be subject to disclosure

under OPRA.

       Further, in my view, a review of existing case law also

does not support the conclusion that an order issued by a chief

of police creates documents that are "required by law to be

made."      Our   court   has    addressed        the    criminal   investigatory

records     exemption     in      two    cases          that    adopt    different

interpretations of the scope of what "required by law" means.

See N. Jersey Media Grp., supra, 441 N.J. Super. at 96-103;




                                        9                                   A-4226-14T3
O'Shea, supra, 410 N.J. Super. at 381-85.                   In O'Shea, the court

held that the Attorney General's "Use of Force Policy"                                        that

required the completion of Use of Force Reports (UFRs) has the

force of law for police entities.               Id. at 384.         Accordingly, in

O'Shea, the court held that UFRs were not criminal investigatory

records and were not exempt from access under OPRA.                           Id. at 385-

86.    In so holding, the O'Shea court rejected the argument that

case law decided under the Right-to-Know Law provided guidance

on    interpreting     OPRA's    "not      required     by    law        to        be       made"

standard.    Id. at 381.

      In    North     Jersey    Media    Group,       another      panel            rejected

O'Shea's     ruling    and     concluded      that    "it    is     appropriate                to

interpret    the    'criminal     investigatory        records'          exception             in

OPRA" by looking at "pre-OPRA case law interpreting the [Right-

to-Know Law's] 'required by law' standard in cases involving

requests for records pertaining to criminal investigations."                                    N.

Jersey     Media    Grp.,    supra,     441    N.J.    Super.       at        96        &     n.16

(expressly disagreeing with O'Shea's conclusion that the Right-

to-Know Law was inapplicable).                North Jersey Media Group arose

from an OPRA request that sought various records from local,

county, and state law enforcement agencies concerning a fatal

police shooting of a criminal suspect.                  Id. at 81-82.                       Police

MVR recordings were among the records sought.                     Ibid.        The court




                                         10                                         A-4226-14T3
in North Jersey Media Group held that a record is "required by

law to be made" if its creation is "mandated by a statute,

regulation, executive order, or judicial decision."                   Id. at 97.

Thus, a record subject to "a generic record retention policy, or

an internal agency directive of a public official" is not one

that is required to be made by law.             Ibid.

       I believe that under either the rationale used in O'Shea or

the rationale used in North Jersey Media Group, the MVR records

here were not required by law to be made.                 Under the definition

of "required by law" adopted by North Jersey Media Group, a

local law enforcement order clearly would not be considered an

order that requires a record to be made by law.                        While the

definition adopted by O'Shea was broader than the definition

used in North Jersey Media Group, the O'Shea definition would

also     not   cover   a    local     order    that     applied     only   in    one

municipality.        O'Shea dealt with an Attorney General directive

that applied statewide.            Moreover, the Attorney General, as the

chief law enforcement officer of the state, has the statutory

authority      to   issue   such    statewide     directives.        See   O'Shea,

supra, 410 N.J. Super. at 382 (citing "Criminal Justice Act of

1970,"    N.J.S.A.     52:17B-97     to   -117;    In   re   Gen.    Disciplinary

Hearing of Carberry, 114 N.J. 574, 577-78 (1989); and In re

Carroll, 339 N.J. Super. 429, 439 (App. Div.), certif. denied,




                                          11                               A-4226-14T3
170 N.J. 85 (2001)).             In contrast, here, we are dealing with an

order issued by the chief of police of one municipality.                   Such a

local order does not constitute an order that makes records

"required by law to be made" under OPRA because it does not have

statewide application and it was only issued by a local police

chief.2

       In    summary,      a    review    of    the   language   of   OPRA,     its

legislative history, and case law do not support the conclusion

that the MVR records in this case were required to be made by

law.        As the majority noted, further guidance on the scope of

the "criminal investigatory records" exemption to OPRA may be

provided given that our Supreme Court has granted certification

to review the decision in North Jersey Media Group.                    N. Jersey

Media Grp., supra, 223 N.J. 553.                In the meantime, the analysis

provided      in   North       Jersey   Media   Group   is   persuasive   in    its

comprehensive review of the legislative history of OPRA and the

case law under the Right-to-Know Law.                 See N. Jersey Media Grp.,

supra, 441 N.J. Super. at 92-103.

2
   Effective March 1, 2015, a new statute required MVRs to be
placed in all new police vehicles that are primarily used in
traffic stops.   N.J.S.A. 40A:14-118.1.    That statute, however,
was declared unconstitutional by the Council on Local Mandates.
In re Complaint Filed by Deptford Twp., No. COLM-0003-15
(Council     on    Local     Mandates     April     20,    2016),
http://www.state.nj.us/localmandates/decisions.    Moreover, the
statute did not expressly require when MVR recordings would need
to be made.



                                          12                              A-4226-14T3
                                      B.

      The trial court, here, did not address the second factor of

the criminal investigatory record exemption; that is, whether

the   MVR    recordings   pertained        to   a    criminal        investigation.

Nevertheless,    the   majority   reviewed          the    record    and   concluded

that the OCPO had not carried its burden to establish that the

MVR recordings pertained to a criminal investigation.                       I again

disagree.    While the record was summary, the record supports the

conclusion that the MVR recordings were initiated to investigate

an in-progress eluding incident.

      Both North Jersey Media Group and O'Shea discussed this

second factor of the criminal investigatory records exemption.

Addressing MVR recordings, the court in North Jersey Media Group

concluded that "when an officer turns on a mobile video recorder

to document a traffic stop or pursuit of a suspected criminal

violation of law, that recording may pertain to a                          'criminal

investigation,' albeit in its earliest stages."                     N. Jersey Media

Grp., supra, 441 N.J. Super. at 104-05.                   The North Jersey Media

Group court did not "address whether a recording initiated to

document a suspected non-criminal violation of motor vehicle law

or a subsequent stop would properly be deemed to 'pertain[] to

any criminal investigation.'"          Id. at 105 n.21 (alteration in

original).    Moreover, the court in North Jersey Media Group also




                                      13                                    A-4226-14T3
held that a record created before an investigation started does

not pertain to that investigation.                  Id. at 104.

      In O'Shea, the court reasoned:

             In the absence of a factual showing that any
             of the reports sought in this matter
             pertained    to     an    actual    criminal
             investigation or to an existing related
             civil enforcement proceeding, we decline to
             adopt the position . . . that UFRs should,
             generically, be regarded to be shielded from
             public access as records [pertaining to an
             investigation].

             [O'Shea, supra, 410 N.J. Super. at 385.]

      The certifications currently in the record state that the

"video      recording    pertains       to        two    ongoing,     active   criminal

investigations . . . . The video also pertains to two separate

internal      affairs    investigations             of    the    [Tuckerton]      police

officer . . . ."        The certifications also add that disclosure of

the   MVR     recordings       "would    compromise          ongoing    criminal       and

internal      affairs    investigations            and    jeopardize     any     further

developments     in     these    investigations."               The   existing     record

makes clear that the MVR recordings at issue here were made

before there was any contemplation of a criminal investigation

concerning     the    Tuckerton     police         officer.         Nevertheless,      the

existing     record     also    supports          the    conclusion     that   the     MVR

recordings were started at a time when the Barnegat police were

already investigating an eluding incident.




                                             14                                  A-4226-14T3
       In evaluating the existing record, it is important to focus

on the language used by the Legislature in enacting OPRA.                          The

word     "pertains"      is   defined    as   "to     relate    to    someone       or

something"    or   "to    have   a   connection     to   a   person    or    thing."

Pertain,              Merriam-Webster.com,                   http://www.merriam-

webster.com/dictionary/pertain           (last    visited      June    20,    2016).

Our Supreme Court has stated that an "investigation" begins when

"the inquiry departs from the routine and focuses with special

intensity upon a particular party."              McClain v. Coll. Hosp., 99

N.J. 346, 357 (1985) (quoting Ctr. for Nat'l Policy Review on

Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir.

1974)).     Applying the plain meaning of the word "pertains" to

the facts of this case, the MVR recordings pertained to the

eluding investigation.

       In summary, I would hold that the MVR recordings here were

exempt    from   disclosure      under   OPRA    as   criminal       investigatory

records.     Consequently, I would reverse the order of the Law

Division and remand for a determination of whether plaintiff is

entitled to access under the common law.




                                         15                                  A-4226-14T3
