NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(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,

(2008) (quoting Asbury Park

Press v. Ocean Cnty. Prosecutor's Office,

(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,

(App. Div. 2009), aff'd,

(2010); MAG Entm’t, LLC v. Div. of Alcoholic Beverage

Control,

(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,

(App. Div. 2010)

(quoting Ocean Cnty. Prosecutor's Office, supra,

). 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,

. "Courts will 'simply no longer accept

conclusory and generalized allegations of exemptions . . . .'"

Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth.,

(App. Div. 2011) (quoting Loigman v.

Kimmelman,

(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,

, 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,

(App.

Div. 2005);

. 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.

15 A-5640-13T4