Patricia Gilleran v. the Township of Bloomfield And louise M. Palagano ( 2015 )


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  •                   NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    
                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-5640-13T4
    
    
    PATRICIA GILLERAN,
                                            APPROVED FOR PUBLICATION
          Plaintiff-Respondent,                   May 13, 2015
    
    v.                                         APPELLATE DIVISION
    
    THE   TOWNSHIP OF BLOOMFIELD
    and   LOUISE M. PALAGANO, in
    her   capacity as Records Custodian
    for   the Township of Bloomfield,
    
          Defendants-Appellants.
    
    ____________________________________
    
               Argued February 25, 2015 – Decided May 13, 2015
    
               Before Judges Ashrafi, Kennedy, and
               O'Connor.
    
               On appeal from Superior Court of New Jersey,
               Law Division, Essex County, Docket No.
               L-3459-14.
    
               Steven J. Martino, Assistant Director of
               Law, argued the cause for appellants (Law
               Department, Township of Bloomfield,
               attorneys; Mr. Martino, on the brief).
    
               Candida J. Griffin argued the cause for
               respondent (Pashman Stein, attorneys; Ms.
               Griffin, of counsel and on the brief).
    
               Stuart A. Youngs argued the cause for amicus
               curiae American Civil Liberties Union of New
               Jersey (Riker Danzig Scherer Hyland &
               Perretti, L.L.P., attorneys, Lance J. Kalik,
               of counsel; Mr. Young, on the brief).
           The opinion of the court was delivered by
    
    ASHRAFI, J.A.D.
    
           The Township of Bloomfield and its Records Custodian appeal
    
    by our leave from an order of the Law Division finding that they
    
    violated New Jersey's Open Public Records Act, N.J.S.A. 47:1A-1
    
    to -13 (OPRA).    The order requires that they disclose to
    
    plaintiff Patricia Gilleran security video recordings from a
    
    stationary camera located on the back of Bloomfield's municipal
    
    building ("Town Hall").    We affirm.
    
           On April 7, 2014, Gilleran made a written OPRA request for
    
    video recordings from the designated security camera for a five-
    
    day period.    The camera is focused on the Mayor's parking space
    
    and also on the rear door of Town Hall.     Gilleran explained that
    
    she was looking for video recordings of a specific person
    
    entering or leaving the building.     After further discussion with
    
    a municipal official, Gilleran voluntarily reduced her request
    
    to one day of recordings, March 31, 2014, from 7:00 a.m. to 9:00
    
    p.m.   She said she would provide a hard drive to copy the
    
    recordings in native format.
    
           On April 11, 2014, Bloomfield denied Gilleran's request,
    
    citing N.J.S.A. 47:1A-1.1.     It claimed the recordings were not
    
    government records subject to disclosure under OPRA because they
    
    are confidential "emergency or security information or
    
    
    
    
                                      2                          A-5640-13T4
    procedures for any buildings or facility which, if disclosed,
    
    would jeopardize security of the building or facility or persons
    
    therein . . . ."   Ibid.
    
         On May 14, 2014, Gilleran filed a verified complaint in the
    
    Superior Court, Law Division, and obtained an order to show
    
    cause.   In her submissions to the court, Gilleran claimed the
    
    recordings will reveal "high-level Democratic officials and other
    
    politicians visiting the Municipal Building on an almost daily
    
    basis and having an influence upon the Town Administrators."     In
    
    response, Bloomfield submitted a certification of the Township
    
    Administrator, Ted Ehrenburg.   After its introductory
    
    paragraphs, the certification stated in its entirety:
    
                   3. . . . The camera from which the
              video was requested is located on the rear
              of Town Hall on the second story. Without
              revealing security information, the camera
              provides security for Town Hall and/or the
              Law Enforcement Building adjacent to Town
              Hall.
    
                   4. The cameras are strategically
              placed and smoked glass is placed over the
              cameras so that the public does not know the
              area that is being surveilled.
    
                   5. Allowing access by the public to
              the video surveillance would defeat the
              entire purpose of having security cameras on
              Town Hall.
    
                   6. Again, without revealing security
              information, the area which is potentially
              surveilled is not only used by public
              employees but Police Officers who report to
    
    
    
                                    3                         A-5640-13T4
               and from work, confidential informants who
               are brought into the Police Station,
               witnesses who are brought into the Police
               Station, domestic violence victims who are
               brought into the Police Station and members
               of the public who seek to report crimes.
    
                    7. If the public is given access to
               the video tapes, the safety of these
               individuals could be put in jeopardy.
    
                    8. Therefore, video surveillance which
               is essential to the security of the township
               buildings should not be provided to the
               public.
    
           At oral argument before the Law Division, Bloomfield
    
    repeated the Administrator's averments but also conceded that
    
    township officials had not viewed the fourteen hours of
    
    requested recordings and did not know specifically what they
    
    contained.    Nevertheless, Bloomfield argued in the abstract that
    
    the recordings may show an undercover officer, witness, or
    
    victim walking into the police station adjacent to Town Hall.
    
    It also argued that the statutory language of OPRA exempts the
    
    recordings from disclosure because they captured "security
    
    measures and surveillance techniques . . . ."    N.J.S.A. 47:1A-
    
    1.1.   From a policy and practicality standpoint, Bloomfield
    
    claimed that "granting the application would create absolute
    
    havoc in the State" and surmised that the township would have to
    
    hire additional staff solely to respond to such OPRA requests in
    
    the future.
    
    
    
    
                                     4                            A-5640-13T4
        Gilleran responded with judicial decisions favoring broad
    
    disclosure of government records to the public.    She argued that
    
    OPRA favors nearly "unfettered" access, see Courier News v.
    
    Hunterdon Cnty. Prosecutor's Office, 
    358 N.J. Super. 373
    , 383
    
    (App. Div. 2003), and emphasized that she could have stood
    
    outside Town Hall on March 31, 2014, and observed everything
    
    captured by the security camera that Bloomfield now claims is
    
    confidential.   She further argued that the existence and
    
    observational direction of the camera are obvious to any member
    
    of the public who chooses to look at its location.
    
        The court held that OPRA did not provide a blanket
    
    exemption from public disclosure for the contents of security
    
    camera recordings.   It concluded that Bloomfield did not meet
    
    its burden of proving under the pertinent statutes that
    
    security-related exemptions applied in the circumstances of this
    
    case.   The court reasoned:
    
              [T]he camera is in plain sight. It is clear
              what the general focus of that camera is.
              There's nothing hidden about it and in that
              respect, knowing that there was a — camera
              pointing at the Mayor's parking space and
              the back door does nothing to jeopardize the
              security of the building itself.
    
                   Without looking   at the tape, there is
              absolutely no way to   say that it would
              create a risk to the   safety of persons,
              property, electronic   data, or software.
    
    
    
    
                                     5                          A-5640-13T4
        The court's order of June 25, 2014, found Bloomfield and
    
    its Records Custodian in violation of OPRA, ordered them to
    
    disclose the requested fourteen hours of recordings within five
    
    days, and found Gilleran to be the prevailing party under
    
    N.J.S.A. 47:1A-6, thus entitling her to recover reasonable
    
    attorney's fees from Bloomfield for litigating her OPRA claim.
    
    Subsequently, the court denied Bloomfield's application for a
    
    stay of the order, although it extended the time within which
    
    the recordings were to be disclosed.
    
        On July 2, 2014, we granted Bloomfield leave to appeal and
    
    a stay.   On a later date, we granted the application of the
    
    American Civil Liberties Union of New Jersey (ACLU) to file a
    
    brief and to argue as amicus curiae on the appeal.
    
        OPRA mandates that "all government records shall be subject
    
    to public access unless exempt . . . ."   N.J.S.A. 47:1A-1.
    
    OPRA's purpose is "to maximize public knowledge about public
    
    affairs in order to ensure an informed citizenry . . . ."      Mason
    
    v. City of Hoboken, 
    196 N.J. 51
    , 64 (2008) (quoting Asbury Park
    
    Press v. Ocean Cnty. Prosecutor's Office, 
    374 N.J. Super. 312
    ,
    
    329 (Law Div. 2004)).
    
        The Legislature explicitly declared in the opening words of
    
    OPRA its intent favoring disclosure:
    
              The Legislature finds and declares it to be
              the public policy of this State that:
    
    
    
                                    6                           A-5640-13T4
             government records shall be readily
             accessible for inspection, copying, or
             examination by the citizens of this State,
             with certain exceptions, for the protection
             of the public interest, and any limitations
             on the right of access accorded by [OPRA]
             shall be construed in favor of the public's
             right of access . . . .
    
             [N.J.S.A. 47:1A-1.]
    
        The statute broadly defines "government record" to include
    
    all documents and similar materials, and all information and
    
    data, including electronically stored data, that have been made
    
    or received by government in its official business.    N.J.S.A.
    
    47:1A-1.1.   From this broad definition, the statute excepts
    
    "inter-agency or intra-agency advisory, consultative, or
    
    deliberative material" and also lists descriptive categories of
    
    information that are expressly excluded from the meaning of
    
    "government record."   Ibid.1   As further expansion of the
    
    public's right of access, OPRA places the burden of proof on the
    
    government agency to show that a requested record may be
    
    withheld under an exception or exclusion from the disclosure
    
    requirement.   N.J.S.A. 47:1A-6.
    
    
    
    
    1
      Two other sections of OPRA also contain exclusions from the
    disclosure requirement: N.J.S.A. 47:1A-3 pertaining to records
    of investigations in progress and N.J.S.A. 47:1A-10 pertaining
    to personnel and pension records.
    
    
    
                                       7                          A-5640-13T4
        Bloomfield does not dispute that the requested video
    
    recordings fit within the general definition of government
    
    record and that Bloomfield bears the burden of proving they are
    
    exempt from disclosure.   It relies on the following two
    
    definitional exclusions of N.J.S.A. 47:1A-1.1:
    
             emergency or security information or
             procedures for any buildings or facility
             which, if disclosed, would jeopardize
             security of the building or facility or
             persons therein;
    
             security measures and surveillance
             techniques which, if disclosed, would create
             a risk to the safety of persons, property,
             electronic data or software . . . .
    
        Bloomfield claims for the reasons stated in Administrator
    
    Ehrenburg's certification that disclosure of the security
    
    recordings would jeopardize confidential police activity and
    
    also the privacy of victims of crime, witnesses, and others who
    
    may have business in the police building.   In addition,
    
    Bloomfield argues disclosure would jeopardize the security
    
    measures it has taken for Town Hall and its adjacent parking
    
    area and police building.
    
        Gilleran and the ACLU respond that these contentions would
    
    generally apply to any security or surveillance recordings kept
    
    by a government agency and, if accepted as the law, would
    
    eviscerate the Legislative purpose of granting the public broad
    
    access to such government records.   They argue against a
    
    
    
                                    8                           A-5640-13T4
    "blanket" exemption of security recordings and insist that
    
    Bloomfield was required to review the requested recordings and
    
    to show specifically in the circumstances of this case that
    
    disclosure would jeopardize the security of the building or risk
    
    the safety of persons or property.    Citing N.J.S.A. 47:1A-5(g),2
    
    Gilleran and the ACLU also argue that, had Bloomfield watched
    
    the video recordings and concluded they actually contained
    
    confidential security or surveillance information, it would have
    
    been required to redact that specific information and release
    
    the rest of the recordings.
    
           Our standard of review is plenary with respect to
    
    interpretation of OPRA and its exclusions.    Asbury Park Press v.
    
    Cnty. of Monmouth, 
    406 N.J. Super. 1
    , 6 (App. Div. 2009), aff'd,
    
    
    201 N.J. 5
     (2010); MAG Entm’t, LLC v. Div. of Alcoholic Beverage
    
    Control, 
    375 N.J. Super. 534
    , 543 (App. Div. 2005).
    
           To avoid the requested disclosure, there must be a "clear
    
    showing" that one of OPRA's exclusions applies.    Tractenberg v.
    
    2
        N.J.S.A. 47:1A-5(g) states in relevant part:
    
                If the custodian of a government record
                asserts that part of a particular record is
                exempt from public access pursuant to
                [OPRA], the custodian shall delete or excise
                from a copy of the record that portion which
                the custodian asserts is exempt from access
                and shall promptly permit access to the
                remainder of the record.
    
    
    
    
                                      9                        A-5640-13T4
    Twp. of W. Orange, 
    416 N.J. Super. 354
    , 378-79 (App. Div. 2010)
    
    (quoting Ocean Cnty. Prosecutor's Office, supra, 374 N.J. Super.
    
    at 329).   A government agency "seeking to restrict the public's
    
    right of access to government records must produce specific
    
    reliable evidence sufficient to meet a statutorily recognized
    
    basis for confidentiality."   Courier News, supra, 358 N.J.
    
    Super. at 382-83.   "Courts will 'simply no longer accept
    
    conclusory and generalized allegations of exemptions . . . .'"
    
    Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 
    423 N.J. Super. 140
    , 162 (App. Div. 2011) (quoting Loigman v.
    
    Kimmelman, 
    102 N.J. 98
    , 110 (1986)).
    
        Bloomfield contends "the video camera is part of an overall
    
    security system installed on Town Hall" which "in and of itself"
    
    is sufficient to deny access.   We reject that contention.     As
    
    argued by Gilleran and the ACLU, the "if disclosed" clauses of
    
    the two statutory exemptions we quoted previously, N.J.S.A.
    
    47:1A-1.1, would be superfluous if the statute was intended to
    
    provide a blanket exemption for all security information,
    
    procedures, measures, and techniques.   The trial court held
    
    correctly that the statutory exclusions do not provide a blanket
    
    OPRA exemption for recordings made from security cameras.
    
        With respect to the particular camera in this case and
    
    information contained on its recordings, Administrator
    
    
    
    
                                    10                           A-5640-13T4
    Ehrenburg's 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.
    
    Bloomfield provided no specific information from police
    
    officials stating that the identity of informants, crime
    
    victims, or confidential witnesses would in fact be revealed and
    
    specifying what kinds of activities occurred outside the police
    
    station during the period of recordings that Gilleran requested.
    
    It provided no information by the persons responsible for
    
    installing or operating the security camera to indicate that
    
    important security strategies or techniques would be disclosed.
    
    For example, there was no indication that the security camera
    
    might have blind spots in its apparent surveillance area, or
    
    that the clarity and sharpness of the imagery recorded would be
    
    revealed in a way that might compromise the strategic deterrent
    
    effect of the security camera or overall security system of the
    
    building.   The Administrator's "conclusory and general
    
    allegations of exemptions," see Newark Morning Ledger, supra,
    
    423 N.J. Super. at 162, were insufficient to justify withholding
    
    the recordings from disclosure.
    
        We do not decide here that information such as in our
    
    examples would be sufficient to qualify the recordings as
    
    excluded from disclosure.   Such a decision must be made in the
    
    
    
    
                                      11                        A-5640-13T4
    appropriate case evaluating the specific facts and legal
    
    arguments presented.   We only decide that the information
    
    contained in the Administrator's certification was insufficient
    
    to avoid disclosure.
    
        Because we are affirming the trial court's decision, we
    
    need not decide whether N.J.S.A. 47:1A-5(g) imposes an
    
    obligation on a government agency to review requested video
    
    recordings in their entirety and to withhold only those parts
    
    that actually contain exempt information.     We view as
    
    impractical the position taken by Gilleran and the ACLU that
    
    OPRA required Bloomfield to review the entire fourteen hours of
    
    recordings and to specify particular footage that contained
    
    confidential material.   Such a requirement may not only be
    
    unreasonably burdensome, it seems virtually impossible to
    
    accomplish without devoting the time and services of multiple
    
    employees.
    
        The Legislature could not have contemplated that the OPRA
    
    disclosure requirement would engage the services of government
    
    employees to view video recordings from stationary surveillance
    
    cameras for hours upon hours to determine whether they contain
    
    confidential or exempt material.     Moreover, it would take more
    
    than a single government employee to review the fourteen hours
    
    of recordings because the employee would have to know what to
    
    
    
    
                                    12                           A-5640-13T4
    look for in the recordings.   It seems unlikely that a single
    
    Bloomfield employee would know the identities of all potential
    
    police informants, confidential witnesses in police
    
    investigations, or victims of crime and domestic violence, who
    
    were at risk if their identities were revealed.
    
        On the other hand, the potential for disclosure of security
    
    measures and techniques, such as the location of blind spots or
    
    the precision and clarity of the recordings, might be
    
    information available to a knowledgeable municipal employee or
    
    to the contractor who designed and installed the security
    
    system.   Without revealing specifics about the weaknesses of the
    
    system, a person familiar with it might be able to explain the
    
    kinds of strategic information that would be revealed,
    
    especially upon close study of the recordings over time.
    
        Gilleran and the ACLU argue that any person taking a
    
    position in the parking lot of Town Hall could make the same
    
    observations as the subject camera recorded.   But the close
    
    study of surveillance recordings over time is different from a
    
    one-time personal observation.   That, in fact, is an important
    
    value of maintaining security recordings.
    
        Furthermore, Gilleran's modified request for one day of
    
    recordings on this occasion could be duplicated or multiplied by
    
    similar requests for many additional days of recordings or
    
    
    
    
                                     13                         A-5640-13T4
    requests by others, including those who have less lawful
    
    objectives than Gilleran.   In an age when security and
    
    surveillance camera recordings may be vital to the identifi-
    
    cation 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 Gilleran's and
    
    the ACLU's argument that the public has an "unfettered" right of
    
    access to security camera recordings with the exception of
    
    precise and very limited redactions.
    
         Reviewing a video recording is different from perusing a
    
    document for purposes of redacting exempt information and
    
    disclosing the rest in accordance with N.J.S.A. 47:1A-5(g), but
    
    that issue may have to be addressed on a case-by-case basis,
    
    depending on the length of the recordings requested and the
    
    nature of the information they may contain.3
    
         We limit our conclusion to the specific case record
    
    presented in this appeal.   We do not hold that security camera
    
    recordings must necessarily be disclosed unless government
    
    officials view them in their entirety and isolate specific
    
    3
      The recent movement to supply police officers with body-mounted
    cameras may produce its own issues of disclosure to the general
    public under OPRA. We are not faced in this case with
    addressing any personal privacy issues regarding police activity
    and contacts with the public that might warrant a closer
    evaluation of public access to police recordings.
    
    
    
    
                                    14                          A-5640-13T4
    footage that meets the requirements of the two exclusions upon
    
    which Bloomfield relies.   We only hold that Bloomfield did not
    
    satisfy its burden of proving the requested recordings are
    
    exempt from disclosure through the general statements of its
    
    Administrator and its argument for a blanket exemption.
    
        Bloomfield contends in the alternative that Gilleran's
    
    request was not sufficiently particular and the records sought
    
    were not readily identifiable.     See Bent v. Twp. of Stafford
    
    Police Dept., Custodian of Records, 
    381 N.J. Super. 30
    , 37 (App.
    
    Div. 2005); MAG, supra, 375 N.J. Super. at 549.     We reject this
    
    argument without discussion.     R. 2:11-3(e)(1)(E).   Gilleran's
    
    request was for the recordings from a specific camera during a
    
    designated time-frame on a single date.
    
        Affirmed and remanded for further proceedings as to
    
    plaintiff's entitlement to reasonable attorney's fees pursuant
    
    to N.J.S.A. 47:1A-6.   The Law Division may in its discretion
    
    lift the stay entered by this court upon an application and
    
    sufficient time for response.    We do not retain jurisdiction.
    
    
    
    
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