OPRA litigant seeks to avoid setting a ‘bad’ precedent

BLOOMFIELD, NJ — A Bloomfield resident, who has successfully fought the township through Superior Court and Appellate Court to obtain a 14-hour Town Hall surveillance recording, and will now be required to argue her case before the Supreme Court, is asking the Supreme Court to correct the wording of an Appellate Court opinion.

The Appellate Court, although ruling in favor of the resident, Pat Gilleran, said that it would be “unduly burdensome” for a government agency to review a 14-hour recording for material that should not be made public. Gilleran made her Open Public Records Act, or OPRA, request, in April 2014.

“Legislature could not have contemplated that the OPRA disclosure requirement would engage the services of governmental employees to view video recordings for hours upon hours to determine whether they contained confidential or exempt material,” the Appellate Court said in court papers.

Gilleran believes this opinion should be eliminated. Her concern is that although she may win her Supreme Court case, the opinion of the Appellate Court may prove to be a stumbling block for future OPRA requests.

Gilleran’s OPRA request was for a week’s worth of footage from a Town Hall surveillance camera pointed at Mayor Michael Venezia’s parking spot. She subsequently revised her request to one day. But the township, without anyone viewing the recording, denied her request because of security concerns. The Town Hall and Police Headquarters share the same parking lot. The position of the township is that confidential police matters could be on the tape.

Gilleran took the township to Superior Court and won. The township appealed and lost in Appellate Court. It has now appealed to the NJ Supreme Court which decided to hear the case. It is anticipated to be heard later this year.

In an email to The Independent Press, Gilleran’s attorney, CJ Griffin, said she and her client “wanted to address the negative dicta within the case because it can be harmful in the future to other requesters.”

Dicta, a legal term, is an opinion of a court which does not address the outcome of a case.
“What we don’t want is public agencies using this language to suggest anytime a request is voluminous that it means they can deny the request.” Griffin said in her email. “The statute clearly states that they cannot do so unless they prove that it would substantially disrupt agency operations and that they first worked with the requestor to find a solution that would accommodate both parties.”

In papers submitted to the Supreme Court supporting Gilleran’s objection, Griffin said OPRA permits a denial by the government to make its records public only if a reasonable solution cannot be found.

“The Appellate Division’s dicta suggesting that the Legislature did not contemplate an agency having to review and redact hours of video footage is thus completely unfounded and must be corrected by this court,” Griffin said.

Griffin said case law permitted a government agency required to review records to charge the person making the OPRA request. She cited Fisher v. Division of Law when five deputy attorney generals and two assistant attorney generals would have had to search computer files for 15,000 emails to satisfy an OPRA request. Griffin said the Appellate Court ruled the government could impose a service charge for this work.

Griffin also said that even though the Appellate Court ruled in Gilleran’s favor, its opinion was that reviewing and redacting a recording 14 hours long would be “unreasonably burdensome.”

But Griffin said the township admitted that no one looked at the recording before denying Gilleran’s request. She said OPRA law was “designed to foster cooperation among requesters and agencies” and that a reasonable solution must be attempted.
“No such thing happened here,” she said.

And even after Gilleran narrowed her request to one day, Griffin said the township did not claim that reviewing the recording would be disruptive, nor did it ask Gilleran to further narrow her request.

Because the township did not attempt to find a reasonable solution and denied the request as a blanket security concern, Griffin said the township must not be permitted to argue before the Supreme Court that reviewing the tape would be burdensome and disruptive, language that is in the Appellate Court opinion.

Griffin said the opinion also suggests that video could be treated differently than other government records when they need to be reviewed and redacted.

“The dicta is troublesome because it gives credibility to mere speculations of harm and implicitly questions whether releasing video footage is wise,” Griffin said. “Case law is clear that a public agency cannot meet its burden of proof by presenting fears of harm that are purely speculative.”

She cited Courier News v. Hunterdon City Prosecutor’s Office when the government claim that releasing a 9-1-1 tape could taint a jury pool. That claim was rejected by the Appellate Court as speculation.