In a just released decision, the New Jersey Appellate Division has upheld one of our basic civil rights - transparency in government.
Specifically, the appeals court agreed with a victim of an assault that permitting a Board of Education to use an OPRA security exception to prevent evidence of an assault captured with security footage installed to capture evidence of criminal activity from reaching the courtroom "would be absurd."
On May 15, 2021, 82 year old Helen Zezza attended her grandson's baseball game at Rice Elementary School in Evesham Township (Rice).
Zezza alleges that, at approximately 11:00 a.m., after the
game concluded and she took her grandson to the school playground, she was
confronted by an individual who verbally accosted and threatened her,
poking her "in the chest and bumping into her back."
This incident was
purportedly captured on two Rice security cameras, one attached to the exterior
of the school building, and another suspended from a lamp post on school
grounds.
As a result, a municipal complaint was issued against the attacker for the disorderly persons offense of simple assault and the petty disorderly persons offense of harassment.
Subsequently, Zezza retained Attorney Ted M. Rosenberg, Esq. to file a civil lawsuit against the attacker.
Rosenberg submitted an OPRA request
to the Evesham Township Board of Education seeking the video footage.
The Board of Education denied the OPRA request, stating that security footage "is exempt from
OPRA pursuant to N.J.S.A. 47:1A-1.112."
Zezza filed legal action in Superior Court seeking for the Court to require the Board of Education to produce the requested security footage. The
complaint also claimed a common law right of access to the security footage
"that outweighs the governmental need for confidentiality," and sought attorney's
fees.
Burlington County Superior Court Judge Covert granted the request and ordered the Board of Education to produce the surveillance video for an in camera review. Judge Covert also awarded plaintiff attorney's fees of $8,046.50.
The Board of Education filed a motion for reconsideration. Judge Covert denied this motion.
In a written ruling, Judge Covert held that Zezza had the right to disclosure of the video footage under both OPRA and the common law right of access. First, on the OPRA claim, the judge held that the 2016 New Jersey Supreme Court decision of Patricia Gilleran v. Township of Bloomfield allowed for production of a record or portion of a record that does not reveal information about the security scheme of the public building. Judge Covert reasoned that, in the OPRA context, "Gilleran draws a fine, but important line between circumstances that require 'the need, in some instances, to deny access to only a portion of a government record' and instances where 'access to the videotape product of the surveillance medium itself reveals security- compromising information.'"
The judge found that it was the defendant's burden to demonstrate that the
footage would reveal "security compromising information," and the defendant failed on that burden. The judge noted that the defendant
failed to support its arguments with any certifications attesting to actual security
concerns related to the release of the video. Further, the judge's own review of
the footage "shows such a limited snapshot of the capability of the school's
security system that it could not jeopardize security by exposing surveillance
weaknesses."
Moreover, the judge found that using the "OPRA security exception to prevent evidence of an assault captured with security footage installed to capture evidence of criminal activity from reaching the courtroom would be an absurd result."
Still unsatisfied, the Board of Education went up to the Appellate Division, to continue to argue that the video footage was exempt from disclosure under OPRA. They further contended that the award of Plaintiffs'attorneys fees should be reversed.
Judges Gooden Brown and Mitterhoff were not persuaded.
The judges found only that the OPRA exempts from disclosure "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."
Based on the Gilleran case law which Judge Covert issued her ruling, the Appellate Division judges agreed that, "in that case, the Court explicitly rejected claims that the Legislature "created a blanket exception for any and all information about security measures." Rather, the provision of surveillance footage is only categorically barred when "the public-security concern is that access to the videotape product of the surveillance medium itself reveals security- compromising information."
"We conclude Judge Covert did not err in her finding that, in this case, defendant simply failed to satisfy its burden.
"Because it is undisputed that OPRA statutorily mandates a fee award to
the prevailing party, defendant's remaining argument that the judge abused her discretion by awarding attorney's fees on a stand-alone common-law right of
access claim is moot," the judges added.
This ruling highlights how important it is for the OPRA laws to remain in place. As previously reported here on FAA News, some Trenton Democrats want to quietly make some drastic changes to OPRA, including eliminating the ability to challenge an OPRA denial in Superior Court, as well as the existing law which requires agencies found to have broken the law to pay the requestor’s attorney fees.
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