No Right of Access to Security Video Footage Revealing Security Capacity for Surveillance System

Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper

 

Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)

Denial of access to town's video security tape footage permissible under [New Jersey's] Open Public Records Act ("OPRA") security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.

Seeking to determine whether certain people had entered the Township's municipal building, Plaintiff Patricia Gilleran requested five days' worth of footage from one of Bloomfield's stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA's exemption for security information.

Gilleran commenced action against the Township by filing a claim with its Law Division to access the requested footage under OPRA and a common law right-of-access claim, noting that the camera was in plain sight and surveying a public area. In her complaint, Gilleran requested that the court order the footage either be released or redacted pursuant to OPRA's security exemptions.

The Township, despite having never viewed the entirety of the recordings, contended that the footage fell within OPRA's security exception because it would allow a viewer to ascertain the actual area being surveyed by the camera. Since the cameras were strategically placed and contained within smoked glass, it was not immediately obvious to the general public as to what the cameras were surveying, despite their location in a publically viewable area. As a result, Bloomfield contended, allowing members of the public to obtain this security camera footage would defeat the original purpose of the security camera. Further, the area potentially surveyed was used not only by public employees, but also by members of the police department, confidential informants and victims of domestic violence whose identities needed to remain anonymous.

Gilleran responded that none of the OPRA security exceptions warranted a blanket prohibition, particularly given the Act's purpose (to grant public access to public records), and urged the court to require Bloomfield to examine the footage in order to determine whether portions of the video contained a security risk. Further, she reiterated, the cameras were publically viewable and had captured nothing that an individual physically present at the same location could also see. She also argued that since the Town had not actually viewed the tapes in their entirety, they had not effectively demonstrated that there was a security risk that warranted the OPRA exemption.

The trial court found Bloomfield in violation of OPRA. The Township appealed and the appellate court upheld the decision of the trial court.

The New Jersey Supreme Court reversed the decision of the appellate court, concluding that OPRA's exception, while not a blanket exception, nonetheless exempts local governments from releasing of video footage that reveal security capacity for security surveillance systems protecting public buildings. It also found the compelled release of security footage to be at odds with the legislative intent of New Jersey's OPRA statute. The court noted, however, that despite OPRA's security exceptions, there still may be a common law right-to-access claim that balances the interests of both parties and allows for citizens to obtain certain sections of surveillance footage. As a result, the case was remanded to be decided under the unresolved common law claim.

Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)

Washington Law Commentary

The Washington State Public Records Act provides a similar exemption for surveillance systems protecting public buildings: "As Division One of our court has held, 'Intelligence information provided by video surveillance systems ... falls squarely within the core definitions of 'law enforcement,' thereby exempting surveillance video recordings from disclosure under RCW 42.56.240(1).'" Gronquist v. State, 177 Wn. App. 389, 400–01, 313 P.3d 416 (2013) (quoting Fischer v. Wash. State Dep’t of Corr., 160 Wn. App. 722, 727–28, 254 P.3d 824 (2011), review denied, 172 Wn.2d 1001, 257 P.3d 666 (2011)). This portion of the law enforcement exemption "only applies to the [investigative, law enforcement, and penology] agencies enumerated in the statute." Does v. King Cty., 192 Wn. App. 10, 27–28, 366 P.3d 936 (2015). The agency must demonstrate that nondisclosure "is essential to effective law enforcement or for the protection of any person’s right to privacy." RCW 42.56.240(1); Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 395, 314 P.3d 1093 (2013). Washington courts have not extensively reviewed the separate "security" exemption statute, RCW 42.56.420. However, any agency or third party seeking nondisclosure under the security exemption statute’s terrorism provision must show that public disclosure "would have a substantial likelihood of threatening public safety." RCW 42.56.420(1); Does, 192 Wn. App. at 29.