Split Supreme Court Exempts Security Camera Footage

Yesterday, the Supreme Court of New Jersey ruled in a split decision that security camera footage is not accessible under the Open Public Records Act (OPRA).

About the Case

The case is Patricia Gilleran v. Township of Bloomfield.  Ms. Gilleran* requested video footage from a security camera placed on the outside of town hall, just above the mayor’s parking spot.  Bloomfield denied her request, citing two of OPRA’s security-related provisions that exempt:

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; [and]

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software

Bloomfield argued vaguely that what the camera records was a secret and that the tape could possibly contain images of police officers, confidential informants, or members of the public reporting crimes at the law enforcement building next door to town hall.

Both the trial court and the Appellate Division ruled in Ms. Gilleran’s favor, finding that the exemptions were not blanket exemptions that rendered all security camera footage inaccessible under OPRA.  The courts also found that Bloomfield had not met its burden of proving that the exemption applied because 1) the camera was in plain view and it was obvious what the camera recorded, 2) the Township Administrator’s certification did not sufficiently explain why releasing the footage would actually cause harm; and 3) no one from Bloomfield had even watched any portion of the tape to state with certainty what it had recorded or whether it contained any confidential images.

Bloomfield appealed to the Supreme Court, who accepted the case.

About Supreme Court’s Split Decision

The Court issued a split decision, with four justices (Justice LeVecchia, Albin, Solomon, and Fernandez-Vina) voting to reverse the lower courts and two justices (Chief Justice Rabner and Justice Timpone) dissenting.  The majority held that security footage was off limits under OPRA because releasing it “would undermine the security purpose of the camera.”   It found that while there is not a blanket exemption for all security-related records (such as the public bidding documents for the purchase of a security system), that there is a blanket exemption for security camera footage.  The Court held that “knowledge of the vulnerabilities of a security system could allow an ill-motivated person to know when and where to plant an explosive device, mount an attack, or learn the movements of persons, placing a public building or persons at risk.”

Ultimately, though the majority ruled that security footage is exempt from access under OPRA, the Court did conclude that there may still be a common law right of access to security camera footage.  It thus remanded the case back to the trial court to determine whether Ms. Gilleran’s interest in the video footage outweighs Bloomfield’s security needs.

In his dissenting opinion, Chief Justice Rabner wrote that had the Legislature intended to create a blanket exemption for all security camera footage, it would have said so.  In the Chief Justice’s opinion, the Township Administrator’s “general language” in his certification did not establish that releasing the footage would jeopardize the safety of persons, which is what the plain language of the exemptions requires.  The dissenting opinion further noted that OPRA provided Bloomfield numerous remedies, such as reviewing the footage and redacting portions of it that caused concern; negotiating with Ms. Gilleran to narrow the amount of footage requested; or charging a service fee to comply with the request.

What This Means For The Public

The Court’s decision means that there is no right to access security camera footage pursuant to OPRA.  While the Court likely found comfort in holding that there is still a mechanism to gain access to the video footage under the common law, unfortunately the Court’s decision will essentially shut down all access to camera footage.

Why? In an OPRA case, an agency who unlawfully denies access to a record faces litigation and will have to pay the fees of any requestor who prevails.  Thus, agencies are more reluctant to deny access to records because it comes with a big financial risk.  As the Supreme Court previously stated, without OPRA’s fee-shifting provision “the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources.”   With regard to the common law, however, as the Chief Justice noted in his dissenting opinion, it is generally thought that there are no attorney fees awarded in common law cases (though, there are some decisions that have held otherwise).  Agencies thus have no incentive to grant access to records under the common law, because they know that very few people will have the resources to file a lawsuit and that even if the requestor prevails, the agency will likely not be on the hook for the fees.

To put it simply, would an agency voluntarily give up camera footage that incriminates the mayor in response to a common law request?  Doubtful.  What is more likely is that the agency would deny access to the footage and then battle it out with the requestor in court.  Most media agencies cannot afford such expensive legal battles these days, let alone average people. Thus, denials of common law claims records will go un-litigated.

The media is widely reporting on this case, with stories by NJ Advance Media, NorthJersey.comNew Jersey  Herald, Philly.com, the Washington Times, PoliticoTapIntoBloomfield.   The American Civil Liberties Union of New Jersey, the Reporters Committee for Freedom of the Press, and 18 media organizations filed amici briefs.

*Ms. Gilleran was represented by CJ Griffin of Pashman Stein Walder Hayden, who may be contacted for comment at cgriffin@pashmanstein.com .

The Trentonian Requests Access to 9-1-1 Calls

Attorney CJ Griffin is representing The Trentonian in an lawsuit which seeks access to 9-1-1 calls under the Open Public Records Act.  The Trentonian will ask the Honorable Mary C. Jacobson, A.J.S.C., to compel the Township of Hamilton to release 9-1-1 calls relating to an alleged domestic dispute that occurred at the home of a Trenton police officer.  Hamilton claims that the Domestic Violence Prevention Act bars access to the 9-1-1 calls.  The Trentonian argues, however, that the DVPA (NJSA 2C:25-33) only exempts certain records and 9-1-1 calls are not on the list. Additionally, the DVPA exemption is not absolute – the court may still balance the interests of the parties and release the records.

The Trentonian reported on the story and the lawsuit here: http://www.trentonian.com/article/TT/20161101/NEWS/161109977

Township of Old Bridge Must Release Dash Camera Footage

Recently, the Honorable Travis L. Francis, A.J.S.C. ruled that the Township of Old Bridge must release dash camera footage that depicts the Police Director of Carteret engaged in a DWI violation.  Judge Francis ruled that dash camera footage is not a criminal investigatory record and that it did not pertain to a criminal investigation.

Pashman Stein Walder Hayden attorney CJ Griffin represented Mr. Wronko in this matter.

For the full article, click on the link.

Justices Weigh Public’s Right to Know in Fatal Cop Encounters

The following article was posted on Northjersey.com on November 9, 2016 edition. It describes an argument before the New Jersey Supreme Court in one of the most consequential Open Public Records Act cases in State history. Our partner Sam Samaro is lead counsel for North Jersey Media Group and our firm spearheaded the appeal.

In one of the biggest legal battles over government transparency in New Jersey, the state Supreme Court is poised to determine how much information the public receives in the hours and days after police officers use fatal force.

A key question in the case is whether law enforcement agencies must release records that name police officers who use fatal force in the line of duty. Another is whether dashboard-camera videos of such incidents are public or confidential.

The justices heard nearly two hours of oral argument on Wednesday in an appeal filed by North Jersey Media Group, a division of Gannett that publishes The Record. MORE

 

Firm’s OPRA Clients and CJ Griffin Mentioned on Atlantic City Press Article

The Press of Atlantic City published a profile on John Paff, a well-known transparency advocate and a firm client.  Pashman Stein Walder Hayden attorney CJ Griffin is also quoted in the article, as well as one of the firm’s other clients, Harry Scheeler.  This article nicely demonstrates the need for transparency and the critical role that Mr. Paff has played in shaping the scope of OPRA.

Article link

May An Agency Take Extensions to Respond?

OPRA provides that a public agency must grant access to a record “as soon as possible, but not later than 7 business days after receiving a request.” Public agencies also are required to make other records available “immediately,” which should mean that you can walk into town hall and obtain a copy or at least receive a copy within 24 hours.  Those records include “budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”

Most people who have filed OPRA requests, however, know that it very frequently takes much longer than 7 business days to get a government record.  Is this lawful?  The answer is that in most cases, yes, the public agency can take longer than 7 business days to produce the records so long as they notify you that they are doing so within the initial 7 business day timeframe.

OPRA specifically recognizes that some records may be in storage or archived, thus not readily available for access. In such a circumstance, an agency must advise you when the record will be available.  OPRA also provides that where a request would “substantially disrupt agency operations,” the agency must work with you to accommodate you and one frequent method of accommodating large requests is by seeking an extension of time to produce the records.

The Government Records Council and the Courts are fairly liberal with extension requests; however, there is a limit. Where there is no real justification for an agency taking multiple extensions and delaying access for weeks or months, it will be obvious to the GRC or the Court that the extensions are simply a mode of unreasonably delaying access to records.  Additionally, if an agency seeks an extension, they have a statutory obligation to produce the records by that date. If they do not produce them or otherwise respond by the date they provided, OPRA considers such to be a “deemed denial” of the request.

If you an agency has requested more than one extension or the extension date they provide seems unreasonable, it is wise to contact an OPRA attorney to assist you in gaining access to the records.  Remember, there are only 45 days to challenge an unlawful denial of an OPRA request.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

 

 

CJ Griffin Quoted in Colts Neck Story

CJ Griffin is quoted in an Asbury Park Press Story: “Colts Neck sues to fight APP records request”

The Status of Access to Police Records:  O’Shea, NJMG v. Lyndhurst, and Paff v. OCPO

In enacting OPRA, the Legislature created two exemptions for police records.  The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a).  For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.”   Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.

OPRA’s other exemption, the “criminal investigatory records” (CIR) exemption, is much more stringent.  If a record constitutes a CIR, then it is forever exempt from access.  The statute defines a CIR as one that is 1) “not required by law to be made, maintained, or kept on file” and 2) which “pertains to any criminal investigation or related civil enforcement proceeding.”  N.J.S.A. 47:1A-1.1.   Both elements must be met in order to shield the record from the public.

Because the very first line of OPRA instructs that “any limitations on the right of access . . . shall be construed in favor of the public’s right of access,” courts have always applied the CIR exemption narrowly.  Accordingly, since 2009, the courts have held that the Attorney General’s Guidelines are “laws” that negate the “not required by law to be made, maintained, or kept on file” element of the CIR exemption.  Thus, records such as Use of Force Reports (UFRs) have been publicly accessible since the AG’s Use of Force Policy requires every officer in the state to complete a UFR after he uses any level of force against a citizen.  See O’Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).

That all changed in 2015, when another panel of the Appellate Division disagreed with O’Shea and held that only duly promulgated regulations, executive orders, statutes, or judicial decisions constitute “laws” for purposes of the CIR exemption.  See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015). Thus, the court held that even if an AG Guideline requires every officer in the state to make a certain record, that record still is not accessible to the public because it was not required to be made by a “law.”  It also applied the second element of the CIR exemption so broadly that if a record even tangentially relates to a criminal defendant, the court held that it “pertained to any criminal investigation.”  The Appellate Division’s decision in NJMG v. Lyndhurst has been detrimental to transparency because it has rendered nearly every police record off limits!

Since NJMG v. Lyndhurst was decided, agencies have had justification to deny access to UFRs and other police records.  Technically, though, trial courts are not bound by NJMG v. Lyndhurst and could instead apply O’Shea.  This is because when there are conflicting Appellate Division opinions, a trial court is free to choose which decision to apply.  Last week, a third published Appellate Division decision involving the CIR was issued, giving the trial courts another decision to choose from.  See Paff v. Ocean County Prosecutor’s Office, __ N.J. __ (2016).

The Paff court expressly disagreed with NJMG v. Lyndhurst.  It instead held that not only are AG Guidelines “laws” that satisfy the “required by law to be made, maintained or kept on file” standard, but so are local policies and directives from a Chief of Police.  The Paff court also disagreed with NJMG v. Lyndhurst’s holding that “an officer’s decision to activate a [dash cam] to document a traffic stop or pursuit of a suspected criminal violation of the law may make the recording ‘pertain to a criminal investigation, albeit in its earliest stages.’”  Thus, per Paff, dash cam footage is accessible and UFRs would be accessible.

Because there was a dissent in Paff, the case automatically goes to the Supreme Court.  The Supreme Court also accepted the plaintiff’s appeal in NJMG v. Lyndhurst.  While trial courts are free to apply either O’Shea/Paff or NJMG v. Lyndhurst at the present moment, ultimately the Supreme Court will issue decisions which will be binding upon every court in the state.   Those landmark decisions will define the scope of access to police records and determine how transparent the police must be.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records.   This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the Judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel fees).

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

 

 

Pashman Stein’s OPRA Cases Make News

Several of Pashman Stein’s OPRA cases have been covered extensively by the press lately. Here is a rundown of the coverage.

McClimate v. Cumberland County

The Daily Journal has covered McClimate v. Cumberland County, a case where Pashman Stein has filed a suit on behalf of a retired county employee who seeks records pertaining to her insurance coverage.  Despite repeated requests that the county provide the actual cost sheet that Horizon Blue Cross gave the county, the county instead insisted on providing only a summary chart that it created.  Ms. McClimate seeks the actual cost breakdown from Horizon so that she can determine whether the County is charging her the proper premium.

Paff v. Bayonne

The Jersey Journal recently covered Paff v. City of Bayonne, a case where Pashman Stein represented open government proponent John Paff in a quest for records pertaining to two settlement agreements.  Mr. Paff sought the agreements, or, in the event the agreements were not finalized, correspondence related to the settlement.  Bayonne denied the request, saying any such correspondence would be exempt pursuant to the attorney-client privilege.  After Mr. Paff filed his suit and argued that correspondence between adversaries is not privileged, Bayonne admitted that it should have stated that no such correspondence even existed.  Bayonne settled the case by admitting its error and paying Mr. Paff’s attorneys’ fees.

Gilleran v. Township of Bloomfield

Patricia Gilleran’s security camera case continues to get news coverage.  Pashman Stein secured a victory for Ms. Gilleran in the trial court and in the Appellate Division, where both courts held that Ms. Gilleran was entitled to security footage from a camera outside Bloomfield’s municipal building.  The case is now pending in the Supreme Court.  Debbie Gallant wrote an article for the Society of Professional Journalists, detailing Ms. Gilleran’s case and the quest to obtain security camera footage from Bloomfield.   Bloomfield Life, Baristanet, and Essex News Daily have also recently covered Ms. Gilleran’s case.

Paff v. Moorestown

Numerous newspapers, including the Philadelphia Inquirer, are covering John Paff’s OPRA lawsuit against the Moorestown Township.  Mr. Paff filed suit to obtain minutes from an October 2012 meeting of the Moorestown Ethical Standards Board.  After Mr. Paff filed suit and argued that public access to minutes cannot be delayed for more than three years and that the agency should release the unapproved minutes, the Board rushed to convene a meeting to approve the 2012 minutes and then released them to Mr. Paff.

DeSanctis v. Borough of Belmar

More Monmouth Musings is covering a lawsuit Pashman Stein filed on behalf of Joy DeSanctis, who is seeking e-mail correspondence between Belmar officials and FEMA regarding Superstorm Sandy funds and the building of the pavilions.  Belmar refused to search for e-mail correspondence, insisting that DeSanctis needed to tell her the exact names of the Belmar officials or FEMA officials who were communicating with each other.  Ms. DeSanctis argues that she has no way of knowing such information, but that Belmar certainly knows and that her request is valid pursuant to Burke v. Brandes, 429 N.J. Super. 169 (2012).

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.