Patricia Gilleran v. the Township of Bloomfield And louise M. Palagano

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5640-13T4
PATRICIA GILLERAN,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, May 13, 2015
v. APPELLATE DIVISION
THE TOWNSHIP OF BLOOMFIELD
and LOUISE M. PALAGANO, in
her capacity as Records Custodian
for the Township of Bloomfield,
Defendants-Appellants.
____________________________________
Argued February 25, 2015 – Decided May 13, 2015
Before Judges Ashrafi, Kennedy, and
O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-3459-14.
Steven J. Martino, Assistant Director of
Law, argued the cause for appellants (Law
Department, Township of Bloomfield,
attorneys; Mr. Martino, on the brief).
Candida J. Griffin argued the cause for
respondent (Pashman Stein, attorneys; Ms.
Griffin, of counsel and on the brief).
Stuart A. Youngs argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Riker Danzig Scherer Hyland &
Perretti, L.L.P., attorneys, Lance J. Kalik,
of counsel; Mr. Young, on the brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
The Township of Bloomfield and its Records Custodian appeal
by our leave from an order of the Law Division finding that they
violated New Jersey's Open Public Records Act, N.J.S.A. 47:1A-1
to -13 (OPRA). The order requires that they disclose to
plaintiff Patricia Gilleran security video recordings from a
stationary camera located on the back of Bloomfield's municipal
building ("Town Hall"). We affirm.
On April 7, 2014, Gilleran made a written OPRA request for
video recordings from the designated security camera for a five-
day period. The camera is focused on the Mayor's parking space
and also on the rear door of Town Hall. Gilleran explained that
she was looking for video recordings of a specific person
entering or leaving the building. After further discussion with
a municipal official, Gilleran voluntarily reduced her request
to one day of recordings, March 31, 2014, from 7:00 a.m. to 9:00
p.m. She said she would provide a hard drive to copy the
recordings in native format.
On April 11, 2014, Bloomfield denied Gilleran's request,
citing N.J.S.A. 47:1A-1.1. It claimed the recordings were not
government records subject to disclosure under OPRA because they
are confidential "emergency or security information or
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procedures for any buildings or facility which, if disclosed,
would jeopardize security of the building or facility or persons
therein . . . ." Ibid.
On May 14, 2014, Gilleran filed a verified complaint in the
Superior Court, Law Division, and obtained an order to show
cause. In her submissions to the court, Gilleran claimed the
recordings will reveal "high-level Democratic officials and other
politicians visiting the Municipal Building on an almost daily
basis and having an influence upon the Town Administrators." In
response, Bloomfield submitted a certification of the Township
Administrator, Ted Ehrenburg. After its introductory
paragraphs, the certification stated in its entirety:
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
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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.
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.
At oral argument before the Law Division, Bloomfield
repeated the Administrator's averments but also conceded that
township officials had not viewed the fourteen hours of
requested recordings and did not know specifically what they
contained. Nevertheless, Bloomfield argued in the abstract that
the recordings may show an undercover officer, witness, or
victim walking into the police station adjacent to Town Hall.
It also argued that the statutory language of OPRA exempts the
recordings from disclosure because they captured "security
measures and surveillance techniques . . . ." N.J.S.A. 47:1A-
1.1. From a policy and practicality standpoint, Bloomfield
claimed that "granting the application would create absolute
havoc in the State" and surmised that the township would have to
hire additional staff solely to respond to such OPRA requests in
the future.
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Gilleran responded with judicial decisions favoring broad
disclosure of government records to the public. She argued that
OPRA favors nearly "unfettered" access, see Courier News v.
Hunterdon Cnty. Prosecutor's Office, 358 N.J. Super. 373, 383
(App. Div. 2003), and emphasized that she could have stood
outside Town Hall on March 31, 2014, and observed everything
captured by the security camera that Bloomfield now claims is
confidential. She further argued that the existence and
observational direction of the camera are obvious to any member
of the public who chooses to look at its location.
The court held that OPRA did not provide a blanket
exemption from public disclosure for the contents of security
camera recordings. It concluded that Bloomfield did not meet
its burden of proving under the pertinent statutes that
security-related exemptions applied in the circumstances of this
case. The court reasoned:
[T]he camera is in plain sight. It is clear
what the general focus of that camera is.
There's nothing hidden about it and in that
respect, knowing that there was a — camera
pointing at the Mayor's parking space and
the back door does nothing to jeopardize the
security of the building itself.
Without looking at the tape, there is
absolutely no way to say that it would
create a risk to the safety of persons,
property, electronic data, or software.
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The court's order of June 25, 2014, found Bloomfield and
its Records Custodian in violation of OPRA, ordered them to
disclose the requested fourteen hours of recordings within five
days, and found Gilleran to be the prevailing party under
N.J.S.A. 47:1A-6, thus entitling her to recover reasonable
attorney's fees from Bloomfield for litigating her OPRA claim.
Subsequently, the court denied Bloomfield's application for a
stay of the order, although it extended the time within which
the recordings were to be disclosed.
On July 2, 2014, we granted Bloomfield leave to appeal and
a stay. On a later date, we granted the application of the
American Civil Liberties Union of New Jersey (ACLU) to file a
brief and to argue as amicus curiae on the appeal.
OPRA mandates that "all government records shall be subject
to public access unless exempt . . . ." N.J.S.A. 47:1A-1.
OPRA's purpose is "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 Cnty. Prosecutor's Office, 374 N.J. Super. 312,
329 (Law Div. 2004)).
The Legislature explicitly declared in the opening words of
OPRA its intent favoring disclosure:
The Legislature finds and declares it to be
the public policy of this State that:
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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 accorded by [OPRA]
shall be construed in favor of the public's
right of access . . . .
[N.J.S.A. 47:1A-1.]
The statute broadly defines "government record" to include
all documents and similar materials, and all information and
data, including electronically stored data, that have been made
or received by government in its official business. N.J.S.A.
47:1A-1.1. From this broad definition, the statute excepts
"inter-agency or intra-agency advisory, consultative, or
deliberative material" and also lists descriptive categories of
information that are expressly excluded from the meaning of
"government record." Ibid.1 As further expansion of the
public's right of access, OPRA places the burden of proof on the
government agency to show that a requested record may be
withheld under an exception or exclusion from the disclosure
requirement. N.J.S.A. 47:1A-6.
1
Two other sections of OPRA also contain exclusions from the
disclosure requirement: N.J.S.A. 47:1A-3 pertaining to records
of investigations in progress and N.J.S.A. 47:1A-10 pertaining
to personnel and pension records.
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Bloomfield does not dispute that the requested video
recordings fit within the general definition of government
record and that Bloomfield bears the burden of proving they are
exempt from disclosure. It relies on the following two
definitional exclusions of N.J.S.A. 47:1A-1.1:
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;
security measures and surveillance
techniques which, if disclosed, would create
a risk to the safety of persons, property,
electronic data or software . . . .
Bloomfield claims for the reasons stated in Administrator
Ehrenburg's certification that disclosure of the security
recordings would jeopardize confidential police activity and
also the privacy of victims of crime, witnesses, and others who
may have business in the police building. In addition,
Bloomfield argues disclosure would jeopardize the security
measures it has taken for Town Hall and its adjacent parking
area and police building.
Gilleran and the ACLU respond that these contentions would
generally apply to any security or surveillance recordings kept
by a government agency and, if accepted as the law, would
eviscerate the Legislative purpose of granting the public broad
access to such government records. They argue against a
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"blanket" exemption of security recordings and insist that
Bloomfield was required to review the requested recordings and
to show specifically in the circumstances of this case that
disclosure would jeopardize the security of the building or risk
the safety of persons or property. Citing N.J.S.A. 47:1A-5(g),2
Gilleran and the ACLU also argue that, had Bloomfield watched
the video recordings and concluded they actually contained
confidential security or surveillance information, it would have
been required to redact that specific information and release
the rest of the recordings.
Our standard of review is plenary with respect to
interpretation of OPRA and its exclusions. Asbury Park Press v.
Cnty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd,
201 N.J. 5 (2010); MAG Entm’t, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 543 (App. Div. 2005).
To avoid the requested disclosure, there must be a "clear
showing" that one of OPRA's exclusions applies. Tractenberg v.
2
N.J.S.A. 47:1A-5(g) states in relevant part:
If the custodian of a government record
asserts that part of a particular record is
exempt from public access pursuant to
[OPRA], the custodian shall delete or excise
from a copy of the record that portion which
the custodian asserts is exempt from access
and shall promptly permit access to the
remainder of the record.
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Twp. of W. Orange, 416 N.J. Super. 354, 378-79 (App. Div. 2010)
(quoting Ocean Cnty. Prosecutor's Office, supra, 374 N.J. Super.
at 329). A government 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." Courier News, supra, 358 N.J.
Super. at 382-83. "Courts will 'simply no longer accept
conclusory and generalized allegations of exemptions . . . .'"
Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423
N.J. Super. 140, 162 (App. Div. 2011) (quoting Loigman v.
Kimmelman, 102 N.J. 98, 110 (1986)).
Bloomfield contends "the video camera is part of an overall
security system installed on Town Hall" which "in and of itself"
is sufficient to deny access. We reject that contention. As
argued by Gilleran and the ACLU, the "if disclosed" clauses of
the two statutory exemptions we quoted previously, N.J.S.A.
47:1A-1.1, would be superfluous if the statute was intended to
provide a blanket exemption for all security information,
procedures, measures, and techniques. The trial court held
correctly that the statutory exclusions do not provide a blanket
OPRA exemption for recordings made from security cameras.
With respect to the particular camera in this case and
information contained on its recordings, Administrator
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Ehrenburg's certification was not sufficiently specific to
establish a risk to the safety of any person or property or
jeopardy to the security measures taken for the building.
Bloomfield provided no specific information from police
officials stating that the identity of informants, crime
victims, or confidential witnesses would in fact be revealed and
specifying what kinds of activities occurred outside the police
station during the period of recordings that Gilleran requested.
It provided no information by the persons responsible for
installing or operating the security camera 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 area, 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. The Administrator's "conclusory and general
allegations of exemptions," see Newark Morning Ledger, supra,
423 N.J. Super. at 162, were insufficient to justify withholding
the recordings from disclosure.
We do not decide here that information such as in our
examples would be sufficient to qualify the recordings as
excluded from disclosure. Such a decision must be made in the
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appropriate case evaluating the specific facts and legal
arguments presented. We only decide that the information
contained in the Administrator's certification was insufficient
to avoid disclosure.
Because we are affirming the trial court's decision, we
need not decide whether N.J.S.A. 47:1A-5(g) imposes an
obligation on a government agency to review requested video
recordings in their entirety and to withhold only those parts
that actually contain exempt information. We view as
impractical the position taken by Gilleran and the ACLU that
OPRA required Bloomfield to review the entire fourteen hours of
recordings and to specify particular footage that contained
confidential material. Such a requirement may not only be
unreasonably burdensome, it seems virtually impossible to
accomplish without devoting the time and services of multiple
employees.
The Legislature could not have contemplated that the OPRA
disclosure requirement would engage the services of government
employees to view video recordings from stationary surveillance
cameras for hours upon hours to determine whether they contain
confidential or exempt material. Moreover, it would take more
than a single government employee to review the fourteen hours
of recordings because the employee would have to know what to
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look for in the recordings. It seems unlikely that a single
Bloomfield employee would know the identities of all potential
police informants, confidential witnesses in police
investigations, or victims of crime and domestic violence, who
were at risk if their identities were revealed.
On the other hand, the potential for disclosure of security
measures and techniques, such as the location of blind spots or
the precision and clarity of the recordings, might be
information available to a knowledgeable municipal employee or
to the contractor who designed and installed the security
system. Without revealing specifics about the weaknesses of the
system, a person familiar with it might be able to explain the
kinds of strategic information that would be revealed,
especially upon close study of the recordings over time.
Gilleran and the ACLU argue that any person taking a
position in the parking lot of Town Hall could make the same
observations as the subject camera recorded. But the close
study of surveillance recordings over time is different from a
one-time personal observation. That, in fact, is an important
value of maintaining security recordings.
Furthermore, Gilleran's modified request for one day of
recordings on this occasion could be duplicated or multiplied by
similar requests for many additional days of recordings or
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requests by others, including those who have less lawful
objectives than Gilleran. In an age when security and
surveillance camera recordings may be vital to the identifi-
cation and prosecution of criminal offenders, and may provide a
deterrent against planned acts of violence and other criminal
conduct, we do not agree indiscriminately with Gilleran's and
the ACLU's argument that the public has an "unfettered" right of
access to security camera recordings with the exception of
precise and very limited redactions.
Reviewing a video recording is different from perusing a
document for purposes of redacting exempt information and
disclosing the rest in accordance with N.J.S.A. 47:1A-5(g), but
that issue may have to be addressed on a case-by-case basis,
depending on the length of the recordings requested and the
nature of the information they may contain.3
We limit our conclusion to the specific case record
presented in this appeal. We do not hold that security camera
recordings must necessarily be disclosed unless government
officials view them in their entirety and isolate specific
3
The recent movement to supply police officers with body-mounted
cameras may produce its own issues of disclosure to the general
public under OPRA. We are not faced in this case with
addressing any personal privacy issues regarding police activity
and contacts with the public that might warrant a closer
evaluation of public access to police recordings.
14 A-5640-13T4
footage that meets the requirements of the two exclusions upon
which Bloomfield relies. We only hold that Bloomfield did not
satisfy its burden of proving the requested recordings are
exempt from disclosure through the general statements of its
Administrator and its argument for a blanket exemption.
Bloomfield contends in the alternative that Gilleran's
request was not sufficiently particular and the records sought
were not readily identifiable. See Bent v. Twp. of Stafford
Police Dept., Custodian of Records, 381 N.J. Super. 30, 37 (App.
Div. 2005); MAG, supra, 375 N.J. Super. at 549. We reject this
argument without discussion. R. 2:11-3(e)(1)(E). Gilleran's
request was for the recordings from a specific camera during a
designated time-frame on a single date.
Affirmed and remanded for further proceedings as to
plaintiff's entitlement to reasonable attorney's fees pursuant
to N.J.S.A. 47:1A-6. The Law Division may in its discretion
lift the stay entered by this court upon an application and
sufficient time for response. We do not retain jurisdiction.
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