OPRA request case gets support on both sides

BLOOMFIELD, NJ — A Bloomfield resident’s OPRA request for a Town Hall surveillance video recording of the mayor’s parking space is drawing attention from national news organizations and the New Jersey Office of the Attorney General.
The request, by township resident Pat Gilleran, for a 14-hour recording of the Mayor Michael Venezia’s parking space on March 14, 2014, is expected to be heard later this year by the New Jersey Supreme Court.

According to court documents, the Reporters Committee for Freedom, a nonprofit organization located in Washington, D.C., and 18 news organizations, recently filed a friends of the court brief supporting Gilleran. The Associated Press, the Hearst Corp., The New York Times, and the National Association of Black Journalists, are among the news organizations supporting her. The New Jersey Office of the Attorney General, however, has filed a brief supporting the township. The briefs, known as amicus curiae briefs, are used for informational purposes.

The township had denied Gilleran’s request to view the tape in April 2014. Former Township Administrator Ted Ehrenburg, through the office of the municipal clerk, contended that surveillance recordings were confidential and exempt from OPRA disclosure of government records. Gilleran disagreed and brought the township and Municipal Clerk Louise Palagano, as records custodian, to Newark Superior Court and won. The township appealed the decision and Gilleran won again. The township acknowledged in court that no one had reviewed the recording.

The brief, filed on Gilleran’s behalf, said that under New Jersey law, surveillance footage cannot be released to the public if disclosure would jeopardize building security and create a risk to a person’s safety.

“In other words,” the brief said, “government agencies claiming these exemptions must satisfy both statutory requirements.”
The brief claimed that Bloomfield did not provide evidence that personal safety was at issue and instead wanted a categorical exemption, which state law prohibits.

The brief also said a Supreme Court decision exempting all surveillance footage “would undermine journalists’ ability to rely on OPRA to gain access to public records and information.” Access to police videos, the brief stated, is not novel.

“The text of OPRA does not distinguish between between videos and other forms of records subjects,” court papers said.
The blanket position of Bloomfield, according to the brief, that public disclosure of surveillance footage should not be permitted, is contrary to common practice when police are looking to solve a crime and release recordings of suspects to the public. Also, with body and dashboard cameras becoming standard police equipment, disclosure of recordings which involve police activity is critical to news reporting on law enforcement.

Opposing Gilleran’s request, the OAG said passive cameras do not fall within OPRA’s definition of government records. And even if they did, the brief said, the decision by the township administrator should suffice that disclosure would be a risk.
The OAG also took the position that since the recording was made by a fixed-position camera, it was not a government record and therefore not subject to an OPRA request.

“OPRA defines a government record as any record made, maintained or kept on file, in the course of his or her official business, by any officer, commission, agency or authority of the state in the course of their official duty,” the brief said.
The brief said the township administrator’s decision was not blanket exclusion but a decision to not reveal the location of a security camera.

It also pointed out that since the Town Hall and police station are one building, requiring someone to view a 14-hour recording while consulting with different police officers, in order to protect the identity of undercover police, informants and domestic violence victims that might come in sight, was unreasonable to ask.

The OAG brief additionally said that since no one reviewed the recording, the Supreme Court should order this done and send the case back to the Appellate Division.

Gilleran had made her OPRA request to determine if cars driven by Bloomfield Democrat party officials were parked in the mayor’s spot. She wanted to know if these cars had parking placards permitting parking privileges, and if they did, if the car owners had a right to them.

Bloomfield has been represented by Assistant Bloomfield Township Attorney Steven Martino. Gilleran is represented by CJ Griffin, of Pashman Stein, which is located in Hackensack.

At the Bloomfield Township Council meeting this past Monday, Martino, who was filling in for Township Attorney Brian Aloia, said he has viewed the recording. He also said he has until Monday, Feb. 15 to respond to the friend of the court briefs.