Patricia Gilleran v. Township of Bloomfield(076114)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)
Argued September 13, 2016 -- Decided November 22, 2016
LaVecchia, J., writing for a majority of the Court.
In this appeal, the Court determines whether the security exclusions of the Open Public Records Act
(“OPRA”), N.J.S.A. 47:1A-1 to -13, preclude disclosure of the day’s worth of video footage from a stationary security
camera attached to the Bloomfield Town Hall that Plaintiff Patricia Gilleran requested from the Township of
Bloomfield.
Gilleran initially requested footage from a five-day period but settled on one day of recordings when asked
by the Township to limit her request. The Township then denied Gilleran’s request, citing OPRA’s exemption for
security information. Gilleran filed a complaint in the Law Division seeking the requested footage under OPRA and
the common law right of access.
Gilleran argued that the camera is in plain sight and captures video of a public area. She contended that the
videotape is a government record subject to access under OPRA and that the Township should either grant her
request in full or review its tapes, redact any exempt portions, and release the remainder. Stressing that OPRA’s
animating purpose is to grant unfettered public access to government records, Gilleran urged the court to find that
none of OPRA’s security exemptions creates a blanket exemption for surveillance video footage.
The Township countered that the camera, which is concealed by smoked glass, provides security for the
Town Hall and/or the Law Enforcement Building adjacent to the Town Hall. According to the Township, the
purpose of providing surveillance would be thwarted if the public were given access to the video records, which
might include footage of confidential informants, domestic violence victims, police officers, and others whose safety
could be jeopardized by release of the footage. The Township also argued that the videos should remain
confidential to protect the secrecy of the capabilities and vulnerabilities of its surveillance system. The Township
further asserted that, because review of surveillance video could impose substantial burdens on its resources, it
should be able to resist a claim for surveillance videotape based on a security exemption without having to require
its employees to review the footage.
The Law Division held that the Township had violated OPRA, ordered the Township to release the
requested footage, and directed the parties to discuss reasonable attorney’s fees. The Township appealed, and the
Appellate Division affirmed the order of the trial court. Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490, 501
(App. Div. 2015). The panel concluded that OPRA contains no blanket exemption for security information and that
determining whether the government must review a recording should be addressed on a case-by-case basis. The
panel remanded the matter to the Law Division for a determination as to attorney’s fees.
The Court granted the Township leave to appeal. 223 N.J. 402 (2015).
HELD: Compelling release on demand of security surveillance video would be contrary to the legislative intent
motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for
the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed
under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and
remands the matter for further proceedings based on the unresolved common law claim.
1. OPRA mandates that government records be made “readily accessible” upon citizen request “with certain
exceptions[] for the protection of the public interest.” N.J.S.A. 41:1A-1. It is the government’s burden to show that
a requested record falls within an exception, including one or both of the security exceptions, which protect
“emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize
security of the building or facility or persons therein,” as well as “security measures and surveillance techniques
which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.” Ibid. (pp.
13-14)
2. The Court begins by assuming that surveillance video is a “government record” within the meaning of OPRA
because neither party argues otherwise. Observing that a statute’s language is the best guide to the Legislature’s
intent in enacting that statute, the Court then turns to the security provisions quoted above, which it reads in the
context of related provisions in order to give meaning to the statute as a whole. (pp 15-16)
3. Viewed together, both security exemptions advance a discernable public policy with respect to the security
systems of public buildings. The Court agreed with Gilleran that the two exceptions do not create a blanket
exemption for any and all information about security measures. The Court stressed, however, that the two
provisions were phrased in a way that allows flexibility in application for public safety purposes. (pp. 16-18)
4. The Court notes that the first exception maintains confidentiality when the release of information produced by
certain security tools places at risk the very security system established for the protection of public buildings and
people. The second exception reinforces the legislative desire to preclude disclosure of security measures and
surveillance techniques that would create a risk for property and persons. Together, these exceptions prevent OPRA
requests from interfering with security efforts, including in ways that the Legislature could not have predicted when
it enacted OPRA. (pp. 18-19)
5. To protect the confidentiality of security information through one of these exceptions, the government must
establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the
security of the building or the persons therein because of the revealing nature of the product of that tool. In this
matter, the Township seeks to protect information about the camera itself, including the scope of the camera’s
surveillance area, the clarity of the images the camera captures, and the frequency with which it captures images.
The Court holds that, when such a concern is present, OPRA’s security exemptions bar access to a security system’s
surveillance product. (pp. 19-22)
6. The Court stresses that this is the sensible application of the security exceptions because, if OPRA were
interpreted to require unfettered access to the work product of any camera that is part of a governmental facility’s
security system, then all such footage from every governmental facility would be subject to release on demand,
creating the opportunity for the protection provided by such security systems to be dismantled. A better approach is
to analyze requests for security footage under the common law right of access, which allows the need for access to
be weighed against the needs of governmental confidentiality. (pp. 22-23)
7. The Court finds that the videotape requested in this matter is not subject to public access under OPRA’s security
exclusions and that the Township provided an adequate basis for finding the footage to be exempt from release. (pp.
23-24)
CHIEF JUSTICE RABNER, DISSENTING, expresses the view that OPRA, by its plain language, does not
categorically exempt all security footage from public disclosure. Rather, OPRA requires public agencies to disclose
public records, including security footage, unless a specific exception applies. The dissent would thus have
remanded the case to the trial court to allow the Township to attempt to establish, based on what appears on the tape,
that the requested footage either “would jeopardize security” or “would create a risk to” safety. N.J.S.A. 47:1A-1.1.
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for
further proceedings based on the unresolved common law right-to-access claim.
JUSTICES ALBIN, FERNANDEZ-VINA, AND SOLOMON join in JUSTICE LaVECCHIA’s
opinion. CHIEF JUSTICE RABNER filed a separate, dissenting opinion in which JUSTICE TIMPONE joins.
JUSTICE PATTERSON did not participate.
2
SUPREME COURT OF NEW JERSEY
A-15 September Term 2015
076114
PATRICIA GILLERAN,
Plaintiff-Respondent,
v.
THE TOWNSHIP OF BLOOMFIELD
and LOUISE M. PALAGANO, in
her capacity as Records
Custodian for the Township of
Bloomfield,
Defendants-Appellants.
Argued September 13, 2016 – Decided November 22, 2016
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 440
N.J. Super. 490 (App. Div. 2015).
Steven J. Martino argued the cause for
appellants (Law Department, Township of
Bloomfield, attorneys).
CJ Griffin argued the cause for respondent
(Pashman Stein, attorneys).
Raymond R. Chance, III, Deputy Attorney
General, argued the cause for amicus curiae
State of New Jersey (Christopher S. Porrino,
Attorney General of New Jersey, attorney;
Jeffrey S. Jacobson, Counsel to the Attorney
General, on the letter brief).
Lance J. Kalik argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
attorney; Mr. Kalik, Mr. Barocas, and Jeanne
M. LoCicero, of counsel; Mr. Kalik,
Stephanie R. Wolfe, and John C. Kessler, on
the brief).
1
Bruce S. Rosen submitted a brief on behalf
of amici curiae The Reporters Committee for
Freedom of the Press, Advance Publications,
Inc., American Society of News Editors, The
Associated Press, Association of Alternative
Newsmedia, Dow Jones & Company, Inc.,
Gannett Co., Inc., Hearst Corporation,
Investigative Reporting Workshop at American
University, MPA – The Association of
Magazine Media, National Association of
Black Journalists, National Newspaper
Association, National Press Photographers
Association, National Public Radio, Inc.,
The New York Times Company, North Jersey
Media Group, Inc., Online News Association,
Radio Television Digital News Association,
and Society of Professional Journalists
(McCusker, Anselmi, Rosen & Carvelli,
attorneys).
JUSTICE LaVECCHIA delivered the opinion for the Court.
This appeal arises from a citizen request, pursuant to the
Open Public Records Act (OPRA or the Act), N.J.S.A. 47:1A-1 to
-13, and the common law right of access, for essentially a day’s
worth of video footage from a stationary security camera
attached to the second-story rear area of Bloomfield Town Hall,
adjacent to the police station.
The Township of Bloomfield (Township) declined to release
the videotape footage. According to the Township, allowing
unrestricted access to security camera videotape -- which would
reveal not only what is and is not captured by the security
camera, but also when and how well it is captured -- would
undermine the purpose of having a security camera system
2
protecting the buildings and people within them. The Township
asserted that the security exclusions of OPRA permitted
withholding the videotape.
We granted leave to appeal from the Appellate Division’s
affirmance of a trial court order compelling release of the
video under OPRA. We conclude that OPRA does not require
release of video footage that reveals security capacity for
security surveillance systems protecting public buildings.
Although we find no OPRA right of access to video footage from
such surveillance systems, that does not mean that a citizen may
not obtain, when appropriate, some portion of video from a
public facility’s security surveillance system, but that request
must be subjected to the common law balancing of interests under
a right-to-know claim. That common law claim was not reached in
this matter so we leave that analysis for another day in the
circumstances arising in this appeal.
The security exceptions preserve the confidentiality of
emergency or security information or
procedures for any buildings or facility
which, if disclosed, would jeopardize security
of the building or facility or persons
therein; [and]
security measures and surveillance techniques
which, if disclosed, would create a risk to
the safety of persons, property, electronic
data or software[.]
[N.J.S.A. 47:1A-1.1.]
3
The wholesale release of videotape footage from a surveillance
camera, which is part of a government facility’s security system
protecting its property, workers, and visitors, would reveal
information about the system’s operation and also its
vulnerabilities, jeopardizing public safety. The compelled
release under OPRA, on demand for any or no reason, of a
security system’s operational product revealing otherwise
nonpublic information about monitoring capability is at odds
with the legislative intent in creating security exceptions to
OPRA. The security exceptions will be applied in a commonsense
manner that fulfills the very purpose of having security-based
exceptions, and we will do so mindful of present day practical
challenges to maintenance of security in public facilities.
We hold that the security exclusions preclude disclosure
under OPRA of the videotape requested in this matter.
I.
On April 7, 2014, plaintiff Patricia Gilleran emailed the
Township’s Records Custodian requesting five days’ worth of
footage -- March 31, 2014 to April 4, 2014, from 7:00 a.m. to
9:00 p.m. -- from a stationary security camera, which was
attached to the back of the municipal building and which, she
claimed, appeared to be directed toward the rear of Town Hall
and a parking area that encompassed the Mayor’s parking space.
4
A clerk1 for the Township spoke with Gilleran, indicated
that five days of footage would be voluminous, and asked if the
request could be winnowed. Gilleran accordingly reduced her
request to one day of recordings: March 31, 2014, from 7:00
a.m. to 9:00 p.m. On April 11, 2014, Gilleran was informed by
email that her request was denied pursuant to OPRA’s exemption
for security information.
Gilleran commenced this action against the Township and its
Records Custodian by filing a complaint in the Law Division
seeking the requested footage under OPRA and the common law
right of access. According to her complaint, plaintiff seeks
the video footage to determine whether certain people had
entered the municipal building. The complaint further alleges
that the camera is in plain sight and captures video of a public
area. Four photographs of the surveillance camera were appended
to the complaint to depict that the camera is affixed to the
second story of the municipal building’s wall, above a parking
lot that includes the Mayor’s parking space.
The complaint contends that the videotape is a government
record subject to access under OPRA and requests the court
either to direct the Township to release the requested footage
1 In different places in the record, this person is listed as a
“clerk/typist,” a records custodian, or an employee in the
Municipal Clerk’s office who frequently responds to OPRA
requests.
5
or to review the tapes in camera and order defendants to redact
portions of the tape that are exempt and release the remainder.
The complaint also demands the award of a civil penalty and
attorney’s fees under OPRA. The complaint also seeks release of
the videotape under the common law right of access.
In its answer, the Township contends that the footage is
exempt as security information. The Township submitted two
certifications: one from the clerk who responded to Gilleran’s
request and the other from Ted Ehrenburg, Bloomfield’s Township
Administrator. Ehrenburg certified that:
3. [] The camera from which the video was
requested is located on the rear of Town Hall
on the second story. Without revealing
security information, the camera provides
security for Town Hall and/or the Law
Enforcement Building adjacent to Town Hall.
4. The cameras are strategically placed and
smoked glass is placed over the cameras so
that the public does not know the area that is
being surveilled.
5. Allowing access by the public to the video
surveillance would defeat the entire purpose
of having security cameras on Town Hall.
6. Again, without revealing security
information, the area which is potentially
surveilled is not only used by public
employees but Police Officers who report to
and from work, confidential informants who are
brought into the Police Station, witnesses who
are brought into the Police Station, domestic
violence victims who are brought into the
Police Station and members of the public who
seek to report crimes.
6
7. If the public is given access to the video
tapes, the safety of these individuals could
be put in jeopardy.
8. Therefore, video surveillance which is
essential to the security of the township
buildings should not be provided to the
public.
On the return date of the court’s order to show cause,
plaintiff argued that, because the case presents a novel OPRA
issue, the court’s focus should be on the Act’s animating
principle, which is to grant unfettered public access to
government records. Plaintiff urged the court to find that none
of OPRA’s security exemptions creates a blanket exemption for
surveillance video footage based on a concern for security and
that, therefore, the Township was obliged to examine the video
to determine whether some portion of its contents would pose a
security risk. Plaintiff’s argument emphasized that the camera
was placed in an obvious and public place and that one can stand
outside the building and observe the same people entering and
leaving the building that the tape would have recorded.
The Township argued that its employees should not be
required to review security footage for the Township to resist a
claim for surveillance videotape based on a security exemption.
From a practical perspective, the Township maintained that
requiring Township employees to review security footage for
every public request could impose substantial burdens on the
7
Township’s resources. The Township acknowledged that no
Township official had viewed the entire footage before claiming
a security exemption under OPRA for plaintiff’s request;
nevertheless, the Township argued that the footage could pose
security risks because it might reveal undercover officers,
witnesses, or victims seeking to maintain confidentiality. More
fundamentally, the Township contended that the videos should
remain confidential so the Township can maintain the secrecy of
the scope of the security surveillance system.
The Law Division held that the Township was in violation of
OPRA and ordered release of the requested video footage within
five days. The court also directed the parties to attempt
agreement on reasonable attorney’s fees under N.J.S.A. 47:1A-6.
On July 1, 2014, the Township filed motions for leave to
appeal and for a stay pending appeal, maintaining that “there is
a security risk if [the tape is] produced,” and that the
“revealing of security measures and surveillance techniques
would create a risk of [sic] the safety of persons in the
Township.” The Appellate Division granted the stay on July 2,
2014. The Appellate Division also granted the application of
the American Civil Liberties Union of New Jersey (ACLU-NJ) for
amicus curiae status.
On May 13, 2015, the Appellate Division affirmed the order
of the trial court. Gilleran v. Twp. of Bloomfield, 440 N.J.
8
Super. 490, 501 (App. Div. 2015). The panel rejected the
Township’s argument that the fact that the video camera footage
was part of a security system should have been sufficient
justification to deny access. Id. at 497. Based on a statutory
construction analysis, the panel held that OPRA’s statutory
exclusions addressing security do not provide a blanket
exemption for all security information. Ibid.Further, the appellate panel held that the record lacked
sufficient specific information for it to conclude that
activities and individuals’ identities revealed on the tape
would pose a security risk if the tape were released. Id. at
498. That said, the panel declined to conclude that an agency
must review requested video recordings in order to claim an
exemption based on security reasons, acknowledging that such a
requirement could be unreasonably burdensome. Ibid. Rather,
the panel stated that determining whether the government must
review a recording should be addressed on a case-by-case basis,
taking into consideration the length of the requested recordings
and the nature of the information contained therein. Id. at
500. The Appellate Division remanded the matter for additional
proceedings related only to the award of fees. Id. at 501.
Because final judgment had not yet been rendered, the
Township properly sought leave to appeal to this Court, which we
9
granted. 223 N.J. 402 (2015).2 The ACLU-NJ, which had been
granted amicus curiae status before the Appellate Division,
filed an amicus brief in support of Gilleran. The Reporters
Committee for Freedom of the Press and eighteen media
organizations were granted amicus curiae status and filed a
brief urging rejection of a “blanket exception” for surveillance
videos. We also granted amicus curiae status to the Attorney
General of New Jersey, who filed a brief in support of the
Township.
II.
The key distinction in the arguments of the parties lies in
how to interpret the security exceptions, both of which include
the phrase, “if disclosed,” in identifying the type of security
information or other material that is excluded from access as a
“government record.” The parties further disagree on whether
the security exceptions require the review and redaction of
discrete material that can be identified as posing a security
risk, subject to cost shifting and other accommodations
generally provided for through N.J.S.A. 47:1A-5.
Plaintiff and the amici who support her right to request
access to the security videotape believe that individualized
review and excision is necessary to give meaning to the phrase,
2 A related notice of petition for certification was dismissed.
10
“if disclosed,” in the two security exclusions. Plaintiff and
amici argue that the phrase requires the Township to review the
tapes and excise only those portions of the tape that would
create a security risk “if disclosed.”
Plaintiff and amici also suggest that, if the Township is
not required to review the tapes, then the Court will have
interpreted the exception to be a “blanket exception” for all
security measures. They point out that other OPRA exemptions
containing similar “if disclosed” language have been applied to
require an individualized assessment of the requested government
record, with release authorized for those portions that do not
pose the demonstrated risk that the exclusion seeks to avoid.
Here they emphasize that the Township made no effort to
demonstrate that portions of the video “would jeopardize”
security because the Township acknowledged that no one had
viewed the tape in its entirety.
The Township and the Attorney General view the security
exclusions differently. They dispute that the videotape merely
provides information equivalent to that which a member of the
public would otherwise view standing outside in the surveilled
public place. Rather, they maintain that videotape from the
Township’s stationary security camera, which is otherwise not
available to be seen by the public, would disclose security
information that reveals the security system’s operation and
11
vulnerabilities –- what the government can view from the inner
workings of its security system. They maintain that allowing
general public access to their security measures, procedures,
and techniques is contrary to the purpose of the security
exceptions.
Accordingly, they argue that the revealing information
ordered to be released -- which would normally be known only to
those who could see through the camera’s lenses or, in other
words, who can view what the camera’s tapes capture, when, and
how well -– was intended to be exempt as a category of
information under the security exclusions. They emphasize that
the security exclusions’ purpose in shielding the release of
such sensitive information about a security system is designed
to foster protection of public buildings and the people within
them. They further argue that courts should apply the security
exclusions and deny public access to a security system’s video
when the government produces a certification that such
information must remain confidential to avoid jeopardizing the
security system’s operation.
In further response to plaintiff’s and the ACLU-NJ’s
position, they contend that their interpretation neither renders
the “if disclosed” language meaningless nor creates a blanket
exception for security-related information. They maintain that
other security-related records remain available on request,
12
subject to excision as needed prior to release. Their position
also allows for release, based on a showing of need balanced
against the government’s interests, through the common law right
of access.
III.
Any analysis of OPRA must begin with the recognition that
the Legislature created OPRA intending to make government
records “readily accessible” to the state’s citizens “with
certain exceptions[] for the protection of the public interest.”
N.J.S.A. 47:1A-1 (declaring public policy animating OPRA). OPRA
substantively provides that “all government records shall be
subject to public access unless exempt,” N.J.S.A. 47:1A-1, and
it places on the government the burden of establishing an
exemption, N.J.S.A. 47:1A-6. See Mason v. City of Hoboken, 196
N.J. 51, 66-67 (2008). The Act sets forth in detail the manner
in which requests for inspection, examination, and copying of
government records are to be addressed, at times underscoring
the responsiveness and cooperation expected from custodians.
See N.J.S.A. 47:1A-5.
OPRA expansively defines “Government record” or “record” to
include
any 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
13
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.]
However, the Legislature established public-policy exceptions
from that definition, declaring that “[a] government record
shall not include . . . information which is deemed to be
confidential.” Ibid. Included in the information that the
Legislature decreed to be confidential is
emergency or security information or
procedures for any buildings or facility
which, if disclosed, would jeopardize security
of the building or facility or persons
therein;
as well as
security measures and surveillance techniques
which, if disclosed, would create a risk to
the safety of persons, property, electronic
data or software.
[Ibid.]
We now evaluate whether those exceptions were intended to
exempt from disclosure the security camera videotape that
plaintiff requested through OPRA.
IV.
We begin our analysis with the assumption that video
footage from a security camera is a “government record” under
OPRA because no party has challenged that starting point, and we
14
proceed directly to whether video footage from a public
facility’s security surveillance camera is exempt from
disclosure based on the public-interest policy concerns
underlying the two security-related exemptions. See N.J.S.A.
47:1A-1 (characterizing exceptions as having been created “for
the protection of the public interest”).
The two government-record exemptions at issue categorize
types of information or content sought to be excluded based on
security concerns. One exemption addresses “security
information or procedures . . . which, if disclosed, would
jeopardize security of the building or facility or persons
therein.” N.J.S.A. 47:1A-1.1 (emphasis added). The other
addresses “security measures and surveillance techniques which,
if disclosed, would create a risk to the safety of persons [or]
property.” Ibid. (emphasis added).
Our task plainly involves statutory construction, the
objective of which is to effectuate legislative intent. Cashin
v. Bello, 223 N.J. 328, 335 (2015). The best source for
direction on legislative intent is the very language used by the
Legislature. See State v. Gandhi, 201 N.J. 161, 176 (2010).
The words used by the Legislature in the applicable
exemptions capture categories of information. Their terminology
transcends reference to a singular document, or like item, that
can be reviewed for redaction and encompasses material that
15
provides insight into security methods and modalities. The
first exemption references “security information or procedures”
the disclosure of which would jeopardize security of public
buildings. N.J.S.A. 47:1A-1.1 (emphasis added). The second
speaks even more broadly in precluding disclosure of a category
of information, specifically reaching records that reveal
“security measures and surveillance techniques” so as not to
place at risk the safety of property, which includes public
buildings, and people. Ibid. (emphasis added). Our job is to
understand the intent that animated those exemptions and to give
it effect. Cashin, supra, 223 N.J. at 335. We do so fully
aware that the Legislature also stated 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. In attempting to
understand what the Legislature intended, a court does not “view
the statutory words in isolation but ‘in context with related
provisions so as to give sense to the legislation as a whole.’”
Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)
(quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
Viewed together, both security exemptions advance a
discernible public policy with respect to the security systems
of public buildings, such as we have here. The two exemptions
endeavor to keep from public scrutiny a swath of information
that, if disclosed, would jeopardize or would undermine the
16
effectiveness of the security system for public buildings
(property) and the people within them. We seek meaning and
intent of the two exemptions by viewing them in context with
each other. Murray, supra, 210 N.J. at 592.
We begin by agreeing with plaintiff that the Legislature
was not creating a blanket exception for any and all information
about security measures. Such a clear and direct exclusion
could have been written, but that is not how the exemptions are
fairly read. The “if disclosed” phrase must have meaning. See
State v. Regis, 208 N.J. 439, 449 (2011) (stating that
legislative words are not presumed superfluous). Certainly,
there are types of security-related information that would
appear disclosable without violating the Legislature’s
overarching concern about the maintenance of public security and
safety. Examples could include public-bidding documents in
connection with acquisition of a security system and documents
revealing the cost of the system. Such examples were readily
acknowledged during argument in this matter. Thus, the
exception does not create a “blanket exception” for all
security-system-related material, as feared by plaintiff and
amici.
However, the Legislature plainly was concerned about
public-safety consequences when creating a shield in OPRA from
17
the on-demand public disclosure of information that relates to
public-facility security concerns.
Even if neither security exception is meant to operate as a
blanket exception, the Legislature’s exceptions -- written
without knowing the extent of the public safety challenges that
the future might bring -- were phrased in a way that allows
flexibility in application for security purposes. They maintain
the confidentiality of information categories when disclosure of
the information, considering the totality of its worth, would
compromise the integrity of a security system and defeat the
purpose to having security exceptions in OPRA.
The first exception allows for the maintenance of secrecy
when the consequence of releasing information produced by
certain security tools places at risk the very security system
established for the protection of public buildings and people.
The second reinforces the legislative desire to preclude
disclosure of security measures and surveillance techniques that
would create a risk for property and persons. The language of
those exceptions broadly permits a categorical exception if the
information’s disclosure would create the very danger the
security measures and surveillance techniques were meant to
thwart.
Current events since the new millennium make evident the
present day difficulties of maintaining daily security for
18
public buildings and people using them. The security exceptions
prevent OPRA requests from interfering with such security
efforts. Even if the Legislature could not have predicted
precisely all the many types of criminal, terroristic events
that have happened since OPRA was enacted, the Legislature
created flexible exceptions to preserve public safety and
security. Now, we know that knowledge of the vulnerabilities of
a security system could allow an ill-motivated person to know
when and where to plant an explosive device, mount an attack, or
learn the movements of persons, placing a public building or
persons at risk. Information that reveals the capabilities and
vulnerabilities of surveillance cameras that are part of a
public facility’s security system is precisely the type of
information that the exceptions meant to keep confidential in
furtherance of public safety.
To achieve exemption for such a category of security
information, the governmental entity must establish that the
security tool (here, the camera) produces information that, if
disclosed, would create a risk to the security of the building
or the persons therein because of the revealing nature of the
product of that tool. We have recognized before the
significance of the release of a “government record” when the
mining of information from the government record can defeat the
very purpose of the OPRA exclusion. In Education Law Center v.
19
New Jersey Department of Education, 198 N.J. 274 (2009), this
Court considered the impact that release of a document under
OPRA would have on thwarting the purpose of an exclusion
recognized under the Act. Specifically, we considered whether
the release of a record that contained factual components could
be subject to the deliberative-process privilege recognized and
protected under OPRA. Id. at 299. In concluding that
disclosure of a seemingly fact-based document could reveal
deliberative content because that protectable type of
information could be gleaned from thoughtful and contextual
review of the document, id. at 299-300, we held that the purpose
to be served by the exception had to be honored in the case
before the Court, id. at 300-02. The Court took a practical
approach to preserving the purpose intended to be achieved by
the legislative creation of the exemption.
Here, we cannot allow ourselves to be blind to the very
purpose of the security exceptions in issue. When determining
whether OPRA meant to require the wholesale release of such
security videotape, on demand, we must consider the videotape as
a whole, with due regard for the information it can reveal about
the Township’s security system. If the release of the product
of a security system can lead to the undermining of the
legislative public-interest policy embedded in the security
exclusions, the exemption protecting such information to avoid
20
the risk of jeopardizing the security protection surely was
intended to prevail in order to protect public safety.3
In this matter, the scope of the camera’s surveillance area
(the width, depth, and clarity of the images, as well as when it
operates, i.e. intermittently and, if so, at what intervals and
are they regular) is the information that the Township seeks to
protect. That the video may contain depictions of otherwise
non-confidential views of an area outside a public building or
may capture persons moving in a public area is not a complete
way in which to assess the security worth of this requested
government record. Such analysis provides a stunted review for
addressing the purpose underlying the security exemptions.
No doubt the security exceptions recognize the need, in
some instances, to deny access to only a portion of a government
record in order to avoid placing at risk the safety of a person
identifiable on the videotape.4 But when the public-security
3 On this point, the dissent describes the majority opinion as
not giving effect to the second prong of analysis under the
exceptions, namely that the disclosure would jeopardize security
or would create a risk to safety. See infra at __ (slip op. at
9). That mistakes our analysis. Although under our
interpretation of the statutory exemption no security footage
can pass the second part of the test embedded in the exception,
that is not to say that all security information is exempt
because, as noted, security information includes more than just
security video footage. The statutory language from the second
prong to the exceptions is not omitted in our analysis.
4 When that is the only basis asserted for non-disclosure of an
otherwise disclosable government record, then it would be
21
concern is that access to the videotape product of the
surveillance medium itself reveals security-compromising
information, then the exemptions can be relied on to bar,
categorically, under OPRA, a security system’s otherwise
confidential surveillance product.
A sensible application of the security exceptions supports
denying release of information that undermines the operation of
a government facility’s security system. Compelling the
wholesale release to the public of videotape product of any
security camera, or combination of cameras, from a government
facility’s security system would reveal information about a
system’s operation and also its vulnerabilities. Once OPRA is
interpreted to require unfettered access to the work product of
any camera that is part of a governmental facility’s security
system, then footage from security cameras in all governmental
facilities –- police stations, court houses, correctional
institutions -- would be subject to release on demand. It takes
no stretch of the imagination to realize that that would make it
possible for any person to gather the information necessary to
dismantle the protection provided by such security systems.
appropriate for the governmental entity to review the tapes and
redact or excise certain portions. OPRA allows for cost
shifting for the additional burden on public resources should
that form of search expedition be requested in an appropriately
tailored way. See N.J.S.A. 47:1A-5.
22
Requests for videotape product from surveillance cameras
protecting public facilities are better analyzed under the
common law right of access where the asserted need for access
can be weighed against the needs of governmental
confidentiality. See O’Boyle v. Borough of Longport, 218 N.J.
168, 196-97 (2014) (noting that “the party requesting documents
must explain why he seeks access to the requested documents” and
relating three-part test used for evaluation of such requests);
Educ. Law Ctr., supra, 198 N.J. at 302. We can envision
circumstances when the need for access to a portion of a
videotape, redacted as necessary, may justify release of the
requested material. For example, an accident occurring in an
area surveilled near a public building or an incident of claimed
brutality or misconduct captured on a facility’s security
videotape may provide a legitimate interest to justify a partial
disclosure under the common law right of access.5 Plaintiff’s
common law right of access claim was never reached in this
matter and so that balancing-of-interest analysis was not
performed. That is the context in which the give and take
emphasized by the dissent should take place when security
5 This Court also recognized recently the possibility of a
judicially fashioned remedy that could include the required
release of a portion of security videotape from cameras inside
and outside a police building as part of required discovery in a
DWI prosecution. See State v. Stein, 225 N.J. 582, 600-01
(2016).
23
videotape, capable of revealing vulnerabilities of the security
system itself, is requested.
That said, we conclude that the broad brush of compelled
release under OPRA, on demand for any or no reason, of the
Township’s security system’s surveillance videotape product,
revealing its capabilities and vulnerabilities, is contrary to
the legislative intent motivating OPRA’s exemptions based on
security concerns. We hold that the videotape requested in this
matter is not subject to public access under OPRA’s security
exclusions. Although a more expansive explanation by the
Township would have been preferable, we are satisfied that the
Township provided an adequate basis, through Mr. Ehrenberg’s
certification, as buttressed by argument, to support its
position that allowing general public access under OPRA to the
video footage from the surveillance camera on Town Hall and the
adjacent police station would undermine the security purpose of
the camera and of the security system of which it is but a part.
V.
The judgment of the Appellate Division is reversed and the
matter is remanded for further proceedings based on the
unresolved common law right-of-access claim.
JUSTICES ALBIN, FERNANDEZ-VINA, AND SOLOMON join in JUSTICE
LaVECCHIA’s opinion. CHIEF JUSTICE RABNER filed a separate,
dissenting opinion in which JUSTICE TIMPONE joins. JUSTICE
PATTERSON did not participate.
24
SUPREME COURT OF NEW JERSEY
A-15 September Term 2015
076114
PATRICIA GILLERAN,
Plaintiff-Respondent,
v.
THE TOWNSHIP OF BLOOMFIELD
and LOUISE M. PALAGANO, in
her capacity as Records
Custodian for the Township of
Bloomfield,
Defendants-Appellants.
CHIEF JUSTICE RABNER, dissenting.
This is a case of statutory interpretation. The outcome
should depend on the language the Legislature used -- or chose
not to use -- in the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13.
OPRA provides the public with access to government records.
N.J.S.A. 47:1A-1. Unless an exception in the statute applies,
the law affords citizens a broad right of access. Ibid.Relying on the statute, Patricia Gilleran asked the Township of
Bloomfield for footage from a video surveillance camera that is
visible to the public and focuses on the back of Bloomfield’s
Town Hall. The Township denied the request, and this action
followed.
1
The trial court found that OPRA does not create a “blanket
exemption” for the disclosure of security tapes and ordered
Bloomfield to disclose the footage. The Appellate Division
affirmed. It carefully analyzed the language of the statute and
agreed that “the statutory exclusions do not provide a blanket
OPRA exemption for recordings made from security cameras.”
Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490, 497 (App.
Div. 2015). The panel also found that the Township did not meet
its burden to establish that either of OPRA’s two security-
related exceptions applies. Id. at 498.
The majority takes a different approach. It concludes that
all footage from security cameras is exempt from disclosure
under OPRA because the footage would reveal the “capability” and
“vulnerabilities” of the government agency’s security system.
See ante at __, __, __ (slip op. at 4, 22, 24). The majority
offers sound reasons why that approach makes sense. But the
Court’s decision cannot overcome a fundamental problem: OPRA
does not say that all security footage is categorically exempt
from public disclosure. The Legislature could have written that
standard into the law but did not. Instead, OPRA requires
public agencies to disclose government records unless a specific
exception applies, and the relevant exceptions do not exempt all
security footage from disclosure. According to the language of
the statute, the Township must demonstrate that surveillance
2
footage “would jeopardize security” or “would create a risk to”
safety to be exempt from disclosure. N.J.S.A. 47:1A-1.1. The
Township has not made that showing and, therefore, has not met
its burden under the law.
Courts must be guided by the Legislature’s policy choices,
which appear in the words of the relevant statutes. Because, in
my view, the majority has not followed the plain language of
OPRA, I respectfully dissent.
I.
The statute provides the critical backdrop to this case.
OPRA is designed “to maximize public knowledge about public
affairs in order to ensure an informed citizenry.” Mason v.
City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park
Press v. Ocean Cty. Prosecutor’s Office, 374 N.J. Super. 312,
329 (Law Div. 2004)).
At the outset of the law, the Legislature declared that
“government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with
certain exceptions, for the protection of the public interest,
and 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 (emphasis added).
The law’s overall design is straightforward. “[A]ll
government records shall be subject to public access unless
3
exempt.” Ibid. OPRA defines “government record[s]” broadly.
N.J.S.A. 47:1A-1.1. The law covers “information stored or
maintained electronically,” which a political subdivision of the
State made or maintained in the course of its official business.
Ibid. The statute also exempts certain items from disclosure;
the Legislature expressly carved out two dozen areas from the
meaning of “government record.” Ibid. OPRA places the burden
on public agencies to prove that an exception applies. N.J.S.A.
47:1A-6.
The law also provides various ways for agencies to limit
disclosure. For example, as a general rule, before custodians
allow access to government records, they must redact social
security numbers, credit card numbers, unlisted telephone
numbers, or driver license numbers from the records requested.
N.J.S.A. 47:1A-5. When part of a record is exempt from
disclosure, “the custodian shall delete or excise” that portion
and “shall promptly permit access to the remainder of the
record.” N.J.S.A. 47:1A-5(g). Also, “[i]f a request for access
to a government record would substantially disrupt agency
operations, the custodian may deny access to the record after
attempting to reach a reasonable solution with the requestor.”
Ibid. And if “an extraordinary expenditure of time and effort”
is needed “to accommodate” a request, the agency may charge a
reasonable “special service charge” based on the actual cost of
4
providing the copies requested. N.J.S.A. 47:1A-5(c); see also
N.J.S.A. 47:1A-5(d) (allowing reasonable service charges related
to information technology).
II.
No party disputes that the surveillance footage sought in
this case is a “government record.” The question before the
Court is whether any exceptions apply to Ms. Gilleran’s request.
The Township relies on two exceptions in the statute:
emergency or security information or
procedures for any buildings or facility
which, if disclosed, would jeopardize security
of the building or facility or persons
therein; [and]
security measures and surveillance techniques
which, if disclosed, would create a risk to
the safety of persons, property, electronic
data or software.
[N.J.S.A. 47:1A-1.1 (emphasis added).]
Neither exception announces a blanket rule that applies to an
entire category of information. Yet the Legislature
specifically used that approach in other areas. It exempted
“criminal investigatory records” from disclosure -- without
qualification. N.J.S.A. 47:1A-1.1. The same is true for
“information . . . to be kept confidential pursuant to court
order.” Ibid. Likewise, “information contained on individual
admission applications” to any public institution of higher
education is exempt across the board. Ibid.5
The Legislature, however, did not exempt all “emergency or
security information” or all “security measures and surveillance
techniques.” Instead, OPRA excludes from the definition of
“government record” only information or footage that,
respectively, “would jeopardize security” or “would create a
risk to” safety. Ibid.To satisfy its burden and establish that the above
exceptions applied, Bloomfield submitted a certification from
its Township Administrator. He explained that “the camera
provides security for Town Hall and/or the [adjacent] Law
Enforcement Building.” He argued that video surveillance
footage should not be disclosed because that “would defeat the
entire purpose of having security cameras on Town Hall.” He
added that “the public does not know the area that is being
surveilled.” In addition, he explained that the safety of
police officers, confidential informants, witnesses, domestic
violence victims, and members of the public who enter the police
station “could be put in jeopardy.” (Emphasis added.)
The general language of the certification does not
establish that the safety of any of those individuals would be
jeopardized -- the standard used in the statute. In fact,
because no one has examined the footage in question, the
Township cannot represent that any confidential informants,
witnesses, or victims appear on the tape. Beyond that, as the
6
Appellate Division noted, the Township did not demonstrate that
some feature of the camera would create a risk of harm if the
footage were released. See Gilleran, supra, 440 N.J. Super. at
498. In short, the Township has not met its burden of proof --
that disclosure “would jeopardize security” or “would create a
risk to” safety -- as the law requires.
To be sure, the Township could have availed itself of
remedies that OPRA provides. It could have reviewed the
surveillance tape and redacted parts that, in fact, “would
create a risk to the safety of persons” or “would jeopardize
security.” N.J.S.A. 47:1A-1.1. The Township, for example,
could have redacted portions that depict any confidential
informants. It could have cropped blind spots from the
videotape in order not to reveal the system’s limitations. If
the Township could demonstrate that the manner and level of
review required “would substantially disrupt” the Township’s
operations, it could have denied access after first “attempting
to reach a reasonable solution with the requestor.” N.J.S.A.
47:1A-5(g). In other words, Township officials could have
negotiated with Ms. Gilleran about the scope of the request and
asked her to narrow it further. At oral argument, counsel for
Ms. Gilleran represented that she would have narrowed the
request if asked. The Township could have also added a
reasonable special service charge if satisfying the request
7
involved “an extraordinary expenditure of time and effort.”
N.J.S.A. 47:1A-5(c). But the Township did none of those things.
Instead of speaking further with Ms. Gilleran, it simply denied
her revised request for one day of video footage.
The majority finds that the release of security camera
footage “would reveal information about a system’s operation and
also its vulnerabilities.” See ante at __ (slip op. at 22).
According to the majority, such disclosures are “at odds with
the legislative intent in creating security exceptions to OPRA.”
Id. at __ (slip op. at 4). The majority therefore concludes
that footage from security cameras, which presumably reveals
sensitive security information, is exempt from disclosure under
OPRA. Id. at __, __, __ (slip op. at 4, 21, 24).
That may be a sensible approach as a matter of policy. The
American Civil Liberties Union of New Jersey, the Reporters
Committee for Freedom of the Press, and the media organizations
that appear as amici strongly argue otherwise. But what matters
in this appeal is what the Legislature said when it made policy
choices in the body of the statute. The Legislature did not
create a wholesale exception for security footage. Instead, it
drafted two security exceptions that each contain two prongs:
(1) the material sought must relate to “emergency or security
information” or “security measures and surveillance techniques”;
and (2) the agency must show that disclosure “would jeopardize
8
security” or “would create a risk to” safety. N.J.S.A. 47:1A-
1.1. Unless both prongs are met, the exceptions cannot apply.
The Court, however, effectively exempts security footage
from disclosure across the board because of what the footage
might reveal about how a security system operates. That
standard is quite broad. Indeed, it is hard to see how security
footage that covers even a modest amount of time could pass the
majority’s test. Beyond that, the Court’s reading of the law
gives no meaning to the second prong in both statutory
exceptions. The analysis, therefore, runs contrary to a basic
rule of statutory interpretation. Courts should give effect to
every word of a statute and not read a law in a way that renders
language superfluous. See H.S.P. v. J.K., 223 N.J. 196, 207
(2015); In re N.B., 222 N.J. 87, 101 (2015); State v. Regis, 208
N.J. 439, 449 (2011).
I would instead address both prongs of OPRA’s security
exceptions, as the Appellate Division did. The panel noted that
the Township
provided no information . . . to indicate that
important security strategies or techniques
would be disclosed. For example, there was
no indication that the security camera might
have blind spots in its apparent surveillance
areas, or that the clarity and sharpness of
the imagery recorded would be revealed in a
way that might compromise the strategic
deterrent effect of the security camera or
overall security system of the building.
9
[Gilleran, supra, 440 N.J. Super. at 498.]
In my view, the panel correctly found that the Township’s
certification contained general statements that “were
insufficient to justify withholding the recordings from
disclosure.” Ibid.
III.
Security cameras have been around for a long time -- well
before OPRA was enacted in 2002.6 Their purpose has always been
to protect public safety. Against that backdrop, OPRA placed
particular conditions on when security footage could and could
not be disclosed; the language of the statute simply did not
exempt all footage from disclosure.
The Legislature, of course, is free to rewrite and broaden
the security-related exceptions in the law. It can craft a
categorical exception for security footage as it has done in
other areas. But it is for the Legislature, not the courts, to
modify the text of a statute.
1 OPRA significantly altered and expanded upon the Right to Know
Law, which had been enacted in 1963. Compare L. 1963, c. 73,
with L. 2001, c. 404. Both security provisions were added as
part of the new law. L. 2001, c. 404, § 1. The Assembly and
Senate voted to adopt OPRA in early January 2002; the Governor
signed the bill on January 8, 2002. Ibid. Just months before,
our nation witnessed the tragic events of September 11, 2001.
It is therefore not correct to suggest that the Legislature
could not have predicted modern-day security issues and acts of
terror when it enacted OPRA. See ante at __-__ (slip op. at 18-
19).
10
When called on to interpret a statute, courts must examine
the plain language of the law and give effect to the words the
Legislature used. Morristown Assocs. v. Grant Oil Co., 220 N.J.
360, 380 (2015); State v. Terry, 218 N.J. 224, 234 (2014). To
give sense to the statute as a whole, courts review particular
language “in context with related provisions.” Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)); see also Burnett
v. Cty. of Bergen, 198 N.J. 408, 421 (2009). Here, the broad
exceptions the Legislature crafted for other categories of
information offer telling context.
OPRA itself adds another important rule of statutory
construction. The law expressly declares 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. Reading OPRA’s
security exceptions to exempt all security footage heads in the
opposite direction.
IV.
The Court remands this matter for further proceedings to
assess what information might be available for disclosure under
the common law right of access. The majority believes that
requests for surveillance videos “are better analyzed under the
common law.” See ante at __ (slip op. at 23).
11
The common law right of access, while important in its own
right, is not a substitute for OPRA. OPRA presumes that records
will be released unless an agency can show that they are wholly
or partially exempt from disclosure. Under the common law,
requestors have access to a broader array of records but “must
make a greater showing than required under OPRA.” Mason v. City
of Hoboken, 196 N.J. 51, 67 (2008). The common law right of
access shifts the burden and requires requestors to “establish
an interest in the subject matter of the material.” Ibid.(quoting Keddie v. Rutgers, 148 N.J. 36, 50 (1997)). That
interest “must outweigh the State’s interest in non-disclosure.”
Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274, 303 (2009).
Counsel also stressed a more practical difference between the
two types of claims. Counsel observed that because attorney’s
fees are available to a prevailing party under OPRA, see
N.J.S.A. 47:1A-6, but have not been available under the common
law, fewer parties will be likely to pursue only common law
requests in court.
V.
The Township presented a legitimate legal argument about
the scope of two OPRA exceptions, as to which there was little
guidance in existing case law. The Township declined to
disclose the surveillance footage without first examining what
the tape contained. Under the circumstances, I would not order
12
disclosure of the tapes at this time. I would instead remand
the case to the trial court and permit the Township to try to
satisfy either of the security-related exceptions in OPRA based
on what appears on the tape. The Township would then be in a
position to redact portions of the tape prior to disclosure, if
it could establish that those parts “would jeopardize security”
or “would create a risk to” safety. N.J.S.A. 47:1A-1.1.
For those reasons, I respectfully dissent.
13