Monthly Archives: November 2016

The Gilleran Opinion Establishes A New Interpretation Of The Security Exemption

The Supreme Court’s recent opinion in Gilleran is important for many reasons. Of course, the Court’s specific holding–that there is no right of access under OPRA to video footage from building security surveillance cameras–is significant. This ruling is of great public interest, as it settles an open issue under OPRA and, more crucially, ensures the security of public buildings in New Jersey.

The opinion is also extremely important because it establishes, for the first time, how to interpret OPRA’s critical exemptions for safety and security. The Court said that a “commonsense” standard governs the meaning of the exemptions.

The requestor and other parties argued that the security exemptions make all security camera footage presumptively open to the public, with the public body having the burden of reviewing every frame of the video and proving that a specific portion (or portions) of the tape would create a security risk if disclosed.

The Court rejected this construction of OPRA, and instead held that all video footage is exempt under the security provisions. The Court emphasized that instead of accepting the requestor’s interpretation of the statute, “[t]he 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.”

I think this means, as a practical matter, that OPRA typically precludes disclosure of records that are related in some way to security concerns. In other words, OPRA requestors generally are not going to be able to gain access to records that have to do with security. Indeed, the Court suggested that the common law right to know, rather than OPRA, should be the route taken by requestors who seek access to security-related material.

Supreme Court: Building Security Camera Footage Is Exempt Under OPRA

The Supreme Court held today, in Gilleran v. Tp. of Bloomfield, that there is no right of access under OPRA to video footage from building security surveillance cameras. As I predicted when the Court granted review of this case a year ago, the Court ruled that OPRA’s security provisions completely exempt these videos from disclosure.

This was the first time that the Supreme Court has had to interpret OPRA’s exemptions for records that involve security information and measures and surveillance techniques. The Court construed these provisions as precluding the release of security system footage in the interest of protecting public safety.

Justice LaVecchia, writing for the majority, explained that requiring disclosure of such footage “would reveal information about a public facility’s security system and its vulnerabilities.” Such a requirement would be contrary to OPRA’s legislative intent, as well as common sense, as “[c]urrent events since the new millenium make evident the present day difficulties of maintaining daily security for public buildings….”

The Gilleran opinion has many ramifications for a number of OPRA issues, which I’ll explore in subsequent posts.



Supreme Court to Issue Gilleran Opinion Tomorrow

Tomorrow the Supreme Court will issue its opinion in Gilleran v. Tp. of Bloomfield, the first of the many OPRA cases now before the Court.

The Gilleran opinion will settle the question of whether OPRA requires access to videos from building surveillance cameras. In addition, the opinion is likely to address several other important OPRA issues, including privacy interests of individuals in videos, the scope of the statute’s exemptions for security and safety, and what constitutes a substantially disruptive OPRA request.

Analysis of the Lyndhurst Supreme Court Oral Argument

The Supreme Court held oral argument a few days ago in the Lyndhurst case, involving OPRA’s criminal investigatory records provisions. The outcome of a case cannot be predicted with absolute certainty based on what is said at the argument, but nevertheless, after watching the argument, I’ll make a few predictions about what the Supreme Court will rule in this important appeal.

(1) Most records concerning a criminal investigation will be confidential

The requestor here argued in the trial court and Appellate Division that all records that are routinely part of an investigation must be disclosed, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports.

However, the requestor apparently withdrew this argument before the Supreme Court. Its attorney told the justices his client’s interest primarily was to obtain disclosure of police dash cam videos and use of force reports, and there was no discussion during the argument of all the other records mentioned above. This means that the Appellate Division’s ruling that the above records are exempt under OPRA should stand.

(2) Most police dash cam videos related to a criminal matter will be confidential, at least while a criminal prosecution is pending

The justices did not indicate where they stand on the issue of whether a dash cam video is an exempt criminal investigatory record, but they were clearly uncomfortable with requiring immediate disclosure of such videos. Several justices recognized that disclosure can corrupt witnesses’ testimony about the incident and thereby harm a prosecution. Also, everyone seemed to agree that privacy interests of individuals shown in the video must be considered.

I think the Court will say that these videos may be withheld during an investigation, pursuant to NJSA 47:1A-3’s “inimical to the public interest” standard.

(3) Use of force reports directly related to a criminal matter will be held confidential

I saw no consensus on the question of access to UFRs, so it’s difficult to make a prediction on this one. However, some justices noted the case law that says that administrative directives do not meet the “required by law” standard, which suggests that they may reject the requestor’s argument that UFRs are not criminal investigatory records because they are required by an Attorney General’s directive.


Supreme Court Schedules Oral Argument in Lyndhurst Case

On Wednesday, November 7, at 1 pm, the Supreme Court will hear argument in the Lyndhurst case, concerning OPRA’s exemption for criminal investigatory records. As I’ve noted before (see, for example, here and here), this is a seminal OPRA case, which will establish new law regarding the extent of access to a wide variety of investigatory material.

The Supreme Court held argument in another law-enforcement-related OPRA case, Gilleran, around six weeks ago. The Supreme Court will probably issue its opinions in Gilleran and Lyndhurst around the same time. This means that, perhaps by early in 2017, there could be new legal standards governing whether many different types of law enforcement recordsĀ  are confidential or accessible.