||New Jersey Libertarian Party
Open Government Advocacy Project:
Burlington judge rules that DWI videotape is disclosable under OPRA
- Not every New Jersey court decision is published in the law books. The vast majority of them are considered \"unpublished opinions\" and \"shall not constitute precedent or be binding upon any court.\" See Court Rule 1:36-3. Even though they\'re not binding, these unpublished decisions can be persuasive to other courts.
One potentially useful unpublished decision was authored by Burlington County Superior Court Judge Ronald E. Bookbinder on February 15, 2011 in the case of Stephen Monson and Virginia Monson v. Township of Mansfield. That decision, along with the summary judgment order and order to pay counsel fees, is on-line here.
The Plaintiffs submitted an Open Public Records Act (OPRA) request for the video recording of a motor vehicle stop and drunk driving arrest of Anita DiMattia that took place in Mansfield Township on May 22, 2010. According to the court\'s opinion, DiMattia was an elected public official at the time of her drunk driving arrest. Mansfield Township Clerk Linda Remus denied the request and the Monsons sued.
Judge Bookbinder first disallowed the Burlington County Prosecutor\'s Office from participating in the case as an amicus curiae (friend of the court). Judge Bookbinder found that not only did the Prosecutor\'s Office not file a motion to be allowed into the case, but that \"there is no evidence before the Court that the Burlington County Prosecutor\'s Office will assist in the
resolution of the instant case.\"
Second, Judge Bookbinder found that the State\'s Records Retention and Disposition Schedule required the Mansfield Police Department to retain the video recording. Therefore, the recording was required by law to be made or maintained, thus removing it from OPRA\'s criminal investigatory exception.
Third, Judge Bookbinder found that DiMattia had no reasonable expectation of privacy in the video.
A few months later, Judge Bookbinder ordered the Township to pay the Monson\'s attorney $5,990 for his costs and fees.
The Monsons were represented by Thomas Cannavo, Esq. and Mansfield Township was represented by Michael Magee, Esq.
When Cain learned that the Press has asked for the recording, he sued Hamilton Township in an attempt to block the recording\'s release. He argued that the recording was a \"criminal investigatory record\" and exempt from disclosure. Judge Higbee, however, found that since DWI is not a \"crime,\" the \"criminal investigatory record\" exception did not apply.
Rather, Judge Higbee found that the only relevant OPRA exception was Hamilton Township\'s obligation to safeguard personal information to which a citizen has a reasonable expectation of privacy. This privacy exception required the court to balance the public\'s need for disclosure against Cain\'s need for privacy.
Judge Higbee found that since Cain was an elected official, Township voters have a legitimate interest in his conduct and his compliance with traffic laws. She found that the public\'s interest in disclosure exceeded Cain\'s interest in privacy and thus released the recording.
Cain appealed the ruling but, according to media reports, the Appellate Division declined to reverse it.
A similar ruling was later handed down by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011. See my blog entry on that case here.
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