                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1994-15T2

WILLIAM J. BRENNAN,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

MIDDLESEX COUNTY PROSECUTOR'S
OFFICE and JAMES O'NEILL, Custodian
of Records for the Middlesex
County Prosecutor's Office,

     Defendants-Respondents/
     Cross-Appellants.
————————————————————————————————

              Submitted September 19, 2017 – Decided August 29, 2018

              Before Judges Reisner, Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No.
              L-0293-15.

              Law Office of Donald F. Burke, attorneys for
              appellant/cross-respondent (Donald F. Burke
              and Donald F. Burke, Jr., on the brief).

              Thomas F. Kelso, Middlesex County Counsel,
              attorney   for   respondents/cross-appellants
              (Benjamin D. Leibowitz, Senior Deputy County
              Counsel, on the brief).

PER CURIAM
     Plaintiff William J. Brennan appeals from an October 23, 2015

Law Division reconsideration order1 that reversed and vacated

previous    orders    compelling    the   Middlesex    County   Prosecutor's

Office (MCPO) to produce mobile video recordings (MVRs) of all New

Brunswick    Police    Department    pursuits   from    "January    2004    to

present," pursuant to the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13.        The MCPO cross-appeals from an earlier Law

Division order, asserting the court incorrectly found it created

a list of cases utilizing Promis Gavel that involved the New

Brunswick Police Department charging individuals with eluding an

officer, N.J.S.A. 2C:29-2(b).2

     We reject plaintiff's argument, and affirm the order under

review.     In light of that disposition, we find it unnecessary to

address the cross-appeal.      We therefore affirm on the appeal and

dismiss the cross-appeal as moot.

     On December 15, 2014, plaintiff sent an email to the MCPO

requesting "[v]ideo and audio recording of police pursuits engaged

in by members of the New Brunswick Police Department from January

2004 to present," in accordance with OPRA and the common law.              Two


1
   Plaintiff also appeals from a November 19, 2015 order denying
his request for counsel fees.
2
  Defendant asserts it did not produce the Promis Gavel list, but
rather plaintiff obtained that list from a related civil
proceeding.

                                      2                              A-1994-15T2
days later, the MCPO custodian of records emailed plaintiff,

explaining the MCPO did not "maintain a file on 'police pursuits,'"

and "[t]he only way . . . to identify cases involving an eluding

charge   is     to    utilize       the    Judiciary        Communications     Network,

commonly referred to as the [P]romis [G]avel computer system."

However, he further explained the MCPO is not authorized to use

Promis Gavel to research OPRA requests.                        He also advised the

request would require "excessive research," and "these MVRs are

exempt as criminal investigatory records . . . ."

      The trial judge initially ordered the MCPO to produce the

requested MVRs and awarded counsel fees, concluding the MVRs were

not exempt from disclosure.                 The MCPO moved for reconsideration

after we decided North Jersey Media Group, Inc. v. Township of

Lyndhurst,      and     held    that        MVRs     constitute     exempt     criminal

investigatory records "when an officer turns on a mobile video

recorder to document a traffic stop or pursuit of a suspected

criminal violation of law."                441 N.J. Super. 70, 105 (App. Div.

2015), aff'd in part & rev'd in part on other grounds, 229 N.J.

541   (2017).         The   trial    court        granted   the   motion,    and   held,

"Clearly[,]          MVRs    fall         within     the      Appellate      Division's

understanding of the criminal investigatory record exception[,]

and based on Lyndhurst[,] the MVRs produced by . . . [d]efendant



                                              3                                 A-1994-15T2
are exempt from disclosure."3             The judge ordered the MCPO to

produce five emails about the videos, but denied counsel fees.

     In June 2016, a different panel of this court disagreed with

Lyndhurst, when it decided Paff v. Ocean County Prosecutor's

Office, 446 N.J. Super. 163, 186 (App. Div.), rev'd, ____ N.J. ____

(2018).   On July 11, 2017, our Supreme Court issued its decision

in Lyndhurst, affirming in part and reversing in part.            Relevant

to the matter under review, the Court declined to address whether

the MVRs in that case were "required by law," because the record

lacked sufficient facts regarding the creation of the MVRs.             229

N.J. at 567-69.       Instead, the Court indicated it would address

this issue when it decided Paff v. Ocean County Prosecutor's

Office.      Ibid.    On August 13, 2018, the Court decided Paff,

concurring    "with   the   panel's   dissenting   judge   that   the   MVR

recordings were not 'required by law' within the meaning of

N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory

records under that provision, and that they are therefore not

subject to disclosure under OPRA." ____ N.J. ____ (slip op. at 4).




3
   Just before plaintiff filed his appellate brief, the MCPO sua
sponte turned over the subject videos, apparently in an attempt
to render the appeal moot, and perhaps to resolve discovery
disputes in a related civil rights case.      However, plaintiff
continued with his appeal, seeking counsel fees.


                                      4                            A-1994-15T2
       The Court's holding in Paff defeats plaintiff's principal

arguments on appeal that "the trial court erred in concluding the

MVRs    requested   were    exempt       from     disclosure       as   criminal

investigatory records" and that he "is a prevailing party entitled

to an award of reasonable [counsel] fees."                 The MVRs plaintiff

sought here were created at a time when they were not required by

law to be made. Moreover, given the broad request for MVRs related

to   "police   pursuits,"   plaintiff's         OPRA    request,   by   its   own

phrasing, pertained to criminal investigations.

       Plaintiff's brief also included an alternative argument, that

the trial court "erred in not requiring the MVRs to be produced

under the common law." In deciding the motion for reconsideration,

the trial court stated, "With regard to the [c]ommon [l]aw [r]ight

of [a]ccess, the [c]ourt is not persuaded to reconsider its

previous denial. Plaintiff did not articulate a reason for seeking

the tapes and therefore, the balance weighs in favor of the

government's right of confidentiality."                Plaintiff's brief fails

to set forth any specific reasons presented to the trial court

regarding his interest in reviewing the MVRs at issue.                   As the

trial court correctly noted, "[p]laintiff . . . has articulated

nothing more than his interest as a taxpayer."

       To gain access to materials under the common law right of

access: "(1) 'the person seeking access must establish an interest

                                     5                                   A-1994-15T2
in the subject matter of the material'; and (2) 'the citizen's

right to access must be balanced against the State's interest in

preventing disclosure.'"   Mason v. City of Hoboken, 196 N.J. 51,

67 (2008) (quoting Keddie v. Rutgers, 148 N.J. 36, 50 (1997); see

also Paff, ____ N.J. ____ (slip op. at 35).     Because plaintiff

failed to establish an interest in the MVRs, we affirm the trial

court's rejection of plaintiff's request to gain access to the

MVRs under the common law right of access.

    Affirmed as to the appeal; the cross-appeal is dismissed as

moot.




                                6                         A-1994-15T2
