John Paff v. Ocean County Prosecutor's Office ( 2016 )


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  •                 NOT FOR PUBLICATION WITHOUT THE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