by Dana DiFilippo, New Jersey Monitor
January 21, 2025

Government officials cannot refuse to disclose police body-worn camera footage to people who are the subject of the recordings, with few exceptions, the New Jersey Supreme Court unanimously ruled Tuesday.

They also can’t withhold such footage to protect the privacy of people accused of but not charged with crimes, because neither the state’s Open Public Records Act nor the judicial case law that preceded it grants such automatic confidentiality, the justices decreed.

The decision stems from a May 2022 report a father made to Chatham police after his special-needs child accused an adult male relative of sexual misconduct.

Police declined to criminally charge the relative. The father, Antonio Fuster, and his wife, Brianne Devine, subsequently asked to see body-worn camera footage of Fuster’s conversation with officers because they said the officers’ written reports were inaccurate and did not reflect what Fuster told police, according to the ruling.

But Chatham officials, including records custodian Gregory LaConte, refused to release the footage or otherwise allow them to review it, citing the privacy rights of people accused but not charged and arguing that disclosure could impede police investigations and did not serve the public interest.

Fuster and Devine challenged the denials in court and lost at the trial and appellate levels.

Justice Rachel Wainer Apter, who penned the decision, reversed the lower courts’ decisions and ordered the township to give Fuster the footage. He’s entitled to it because he’s not a random third-party, but instead its main subject, Wainer Apter said.

“Under the specific facts of this case, defendants’ withholding of the body worn camera recording simply does not protect any significant privacy interest,” she wrote.

The withheld footage also isn’t a recording of the state’s investigation, but a verbatim recording of Fuster’s own complaint as he made it to police, she wrote. Besides, the township had already shared details of the investigation with Fuster when they gave him written records pertaining to his report, she added.

Wainer Apter also cited various laws meant to protect victims, knocking township officials for their failure to give Fuster footage of his own account of his child’s alleged victimization.

“It is treating victims as though they were perpetrators that can make victims unwilling to report incidents to police,” she wrote.

The ruling was one of several the state’s top court has issued on body-worn cameras since state lawmakers, in the wake of George Floyd’s death at the hands of Minneapolis police in 2020, passed a law requiring all law enforcement officers in New Jersey to wear them to document their encounters with the public.

Under both that law and the Open Public Records Act, the cameras’ recordings are considered government records subject to public disclosure, but both laws list certain exemptions — which sometimes don’t align.

Attorney CJ Griffin represents Fuster and argued the case before the Supreme Court, with the American Civil Liberties Union of New Jersey, the Reporters Committee for Freedom of the Press, and Partners for Women and Justice filing supporting briefs.

Griffin called Tuesday’s ruling “a total victory” for her client, as well as anyone who’s the subject of a police body-cam video who wants to review the video. Griffin has represented the New Jersey Monitor in various legal matters.

“This video should have just never been denied to them,” Griffin said. “It made no sense that somehow it would violate privacy to give this to them when it’s their own statement to the police. They felt like this was a very anti-victim position that the police took, and then we were just really astounded that both the trial court and the Appellate Division ruled against us.”

Still, while the decision clearly says the subject of a body-cam video has a right to review it, Griffin said, its broader impact remains murky, given the complexities of the body-cam law.

Despite the law’s intent to increase transparency around policing, officials often deny requests for body-cam footage “because when an agency can’t figure out the law very well, then they just automatically deny something,” Griffin said.

“Every time someone comes to me with a body-cam issue, I have to essentially print the statute out again and make a flow chart of all the provisions to determine whether or not it’s going to be subject to access or not, and this decision today doesn’t provide a lot of clarity on that,” she said. “It’s still unclear how OPRA’s exemptions interact with the body-cam law. So that’s going to have to be another case that might test what that is or not.”

New Jersey Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence T. McDonald for questions: [email protected].