BLOOMFIELD, NJ — The New Jersey Supreme Court has upheld a township of Bloomfield decision to refuse a township resident a copy of a recording taken by a Municipal Building security camera.
The 4-2 decision, made public Nov. 22, reversed an Appellate Division ruling that would have permitted Bloomfield resident Patricia Gilleran the right to obtain the recording through an OPRA request. Gilleran had initially won her argument at the Law Division of Newark Superior Court after former Township Administrator Ted Ehrenburg had denied her the request over security concerns. It was acknowledged in court papers that no township employee actually viewed the 14-hour tape to see if anything had been recorded that would compromise security. The majority decision was delivered by Justice Jaynee LaVecchia.
The Supreme Court decision said two security-related exemptions from an OPRA request were at issue: security information or procedures, and security measures and techniques.
“The decision essentially shuts down all access to security cameras,” said CJ Griffin, Gilleran’s attorney.
She said the request could be further argued in court but under common law. This would mean that Gilleran would have to prove that her need for the disclosure of the recording outweighs public need to not disclose the recording. Griffin, who spoke in a telephone interview Nov. 23, said she did not know if Gilleran would pursue the issue. But she said if Gilleran did go forward, the township would try to stop her again. The township was represented by Assistant Township Attorney Steven Martino.
“I understand the township wants to continue fighting for it,” she said. “The best thing would be for the township to give her the relevant portion of the recording.”
Griffin said she thought this because litigation was costly and she and Gilleran felt that Gilleran had a right to it. In the event Gilleran had won her OPRA case, the township would pay her attorney bills. However, in a common law case, win or lose, she would have to pay her own attorney fees.
“Fighting hard also makes the public think they are hiding something,” she said.
Gilleran had wanted to obtain the recording to determine if anyone was improperly parking in Mayor Michael Venezia’s parking space behind the Municipal Building. She had said her concern was that high-ranking individuals in the Bloomfield Democratic Committee were using parking placards to park in his space when they should not have had the placards in the first place.
Regarding security information and information procedures, the court decision said events since the new millennium have made clear the importance of maintaining the daily security of public buildings. Although the legislature could not have foreseen the criminal and terrorist events when it enacted OPRA, “information that reveals the capabilities and vulnerabilities of surveillance cameras is precisely the type of information that the exceptions meant to keep confidential,” according to the decision.
Addressing security measures and techniques, the court said that the ability of the camera to make a recording, the clarity of its images, the field of vision for the camera, and its movement, also have to be protected.
“That the video may contain depictions of otherwise non-confidential view of an area outside a public building provides a stunted review for addressing the purpose underlying the security exemptions,” the decision read.
The decision said that it would take “no stretch of the imagination” to realize that unfettered access to camera recording would make it possible for anyone to dismantle a security system dependent upon surveillance cameras.
Adam Marshall, an attorney at Reporters Committee for Freedom of the Press, which wrote a brief supporting Gilleran and represented various media outlets, said in a telephone interview that the brief by the committee tried to point out the dangers of giving a blanket OPRA-exemption to all security-camera footage.
“The court brought the speculative viewpoint, that it might be dangerous,” he said. “The use of police surveillance can be used but the public hasn’t access to it so they don’t know how it’s being used. That’s troubling.”
But Marshall said the decision does use language that limits the scope of the decision.
“It mentions government facilities,” he said. “It seem that they are making a very fact-specific decision. I would hope the courts would recognize that limited language, that it was a case decided on very particular facts.”
Township attorney Martino said he believed the decision was right for the particular instances.
“OPRA is pretty broad,” he said in a telephone interview. In this case, I don’t think it serves that purpose. It’s a security measure.”
Regarding continuing the case under common law, Martino said he did not know what Gilleran planned.
“If Ms. Gilleran continues to pursue this under common law, we would fight it,” he said.
Martino said it was an honor to appear before the Supreme Court.