OPRA and Security Camera Footage
Jul 10, 2018 | Written by: Share|
The New Jersey Supreme Court in Gilleran v. Twp. of Bloomfield, 227, N.J. 159 (2016) set forth a test to determine whether security footage of public buildings should be disclosed pursuant to an Open Public Records Act (OPRA) request. However, the Court has not opined as to whether security footage of private property obtained during police investigations is subject to OPRA.
Police departments routinely obtain security footage of private property during their investigations. When such footage is obtained during an investigation that is not criminal (e.g., an accident investigation), or when the criminal investigation in which it is obtained ceases, the footage is no longer subject to the OPRA exemption for criminal investigatory records. Therefore, the question arises if this footage is subject to OPRA.
In Gilleran, the plaintiff had requested a day of security footage from a camera placed at the entrance to the municipal building and police station in Bloomfield Township. The Court in Gilleran declined to apply a blanket exemption from OPRA for security camera footage. Instead, the Court articulated and applied the following test:
To achieve exemption for such a category of security information, the governmental entity must establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the security of the building or the persons therein because of the revealing nature of the product of that tool. Id. at 174.
In this case, the Court held that because the “[t]ownship seeks to protect information about the camera itself, including the scope of the camera’s surveillance area, the clarity of the images the camera captures, and the frequency with which it captures images…OPRA’s security exemptions bar access to a security system’s surveillance product.” The Court further held that requests for security footage from cameras at public buildings are better analyzed under the common law right of access “where the asserted need for access can be weighed against the needs of governmental confidentiality.” Id. at 175.
Applying the logic of Gilleran in light of OPRA’s privacy exemption logically allows police departments to analyze whether to disclose security footage pursuant to an OPRA request. Under OPRA, public entities are obligated to “safeguard” citizens’ personal information. N.J.S.A. 47:1A-1. A person or an entity’s security footage of private property implicates those privacy concerns. Just like a public agency, a private person or entity has an interest in safeguarding information concerning its security system, such as the location of cameras, the scope of the surveillance, and the clarity of the captured images.
However, it is important to recognize that the Court in Gilleran did state that requests for security footage should also be analyzed under the common law right to access, which requires balancing the need for privacy with the need for disclosure. Id. at 176-77. Therefore, cases may arise where a requestor’s need for disclosure outweighs the privacy interest, such as in the case of a person who was injured in an accident.
Tara St. Angelo, Esq. concentrates her practice primarily in the areas of municipal and land use law. She was named to the NJ Super Lawyers Rising Stars list for State, Local and Municipal law by Thomson Reuters in 2017 and 2018. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.
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