On May 13, 2015, in a precedential opinion, the Appellate Division held that Bloomfield Township should not have denied an OPRA request for a day’s recordings of a video camera stationed at the back of its municipal building. See Gilleran opinion. What’s truly significant about this opinion is that although disclosure was ordered in this case, the court emphasized that custodians are not always required to release such videos, and the judges provided helpful guidance as to how to handle future requests for such records.
The Township argued that it properly denied the OPRA request for the security camera recordings on the basis of the statute’s exemptions for “security information or procedures for any buildings…which, if disclosed, would jeopardize security….” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons [or] property….” It relied on a certification by its Administrator, which stated that the camera is part of the building’s security system, and also noted that the area shown by the camera may be used by police officers, informants and crime victims.
The court rejected the argument that a building security camera’s recordings are per se exempt from disclosure, and held that the Administrator’s certification was too general to support confidentiality; in the words of the court, the 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.” Therefore, Bloomfield failed to satisfy its burden of proving that the recordings were exempt.
But the court stated that its ruling in favor of disclosure was based only on the inadequate certification submitted by Bloomfield. The court went on to provide examples of statements in a certification that could potentially satisfy the security and safety exemptions. For example, there were no statements from the police indicating that the identity of informants or victims would in fact be revealed by the videos, nor was there a specific explanation of how the security system would be compromised.
The court recognized the critical law enforcement interests at stake where a requestor seeks disclosure of a building’s security camera, commenting: “In an age when security and surveillance camera recordings may be vital to the identification 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…[the] argument that the public has an ‘unfettered’ right of access to security camera recordings with the exception of precise and very limited redactions.”
In addition, the court gave custodians guidance on how to handle a request for a video showing hours of recordings. When this occurs, said the court, the agency is not obligated to review all of the footage and withhold only the parts showing confidential information. The court rejected this approach (which had been suggested by the requestor here) as “impractical,” “unreasonably burdensome,” and not within the Legislature’s contemplation. Instead, the request may be denied, if supported by the type of evidence of potential security harm described above.
In short, the Gilleran opinion is important and likely to be cited often by agencies.
As a side issue, it’s interesting to note that the court mentioned, in a footnote, that its opinion does not address the privacy issues raised by OPRA requests for recordings made by police body cameras. This New Jersey OPRA Law Reporter post discusses these issues.