OPRA Requests for Security Footage
FRANK MARSHALL, ESQ., NJLM Staff Attorney
We received an OPRA request
information, if disclosed, that wou ld jeopardize or u ndermine
seeking footage from the security
the effectiveness of su ch systems for pu blic bu ilding and the
camera facing the parking lot
people within them. The Cou rt fou nd that allowing u nfettered
access to su rveillance footage wou ld reveal details of the secu -
outside of our municipal building.
rity system itself, inclu ding its capabilities and vu lnerabilities
Is this something that we need to
su ch as what areas a camera captu res, and when and how
provide under OPRA?
well the cameras fu nctions, thu s u ndermining the pu rpose and
effectiveness of the secu rity system itself. The Cou rt fu rther
fou nd that there wou ld be no redaction possible that wou ld
ecu rity camera footage has been fou nd to
prevent the secu rity system from being compromised.
be exempt from disclosu re u nder OPRA,
bu t disclosu re may still be requ ired u nder
the common law right to access.
it is wel -settled law that video
First, when dealing with any qu estion involving
recordings and photographs
disclosu re u nder the Open Pu blic Records Act
(OPRA) a threshold issu e that mu st be addressed is
made in the course of municipal
whether or not the material sou ght is a “government record”
as that term in defined by the OPRA. In you r case, it is well-
business are indeed government
settled law that video recordings and photographs made in the
cou rse of mu nicipal bu siness are indeed government records.
With that threshold issu e ou t of the way one mu st next deter-
mine if the government record requ ested falls u nder one of var-
With this in mind, the Cou rt fou nd that access granted
iou s exemptions provided for in the OPRA. In regards to secu -
throu gh the OPRA to the vid eo tape footage of a govern-
rity camera footage, two su ch exemptions seemingly apply. The
mental facility’s secu rity system, wou ld be contrary to the
first is the exemption for “emergency or secu rity information
legislative intent of the secu rity exceptions, thu s denying u nder
or procedu res for any bu ildings or facility which, if disclosed,
OPRA both the wholesale and redacted access to secu rity
wou ld jeopardize secu rity of the bu ilding or facility or person
therein.” The second possible exemption is for “secu rity mea-
Importantly, however, the Cou rt did not go as far as to com-
su res and su rveillance techniqu es, which if disclosed, wou ld
pletely exempt secu rity camera footage from pu blic disclosu re.
create a risk to the safety of person, property, electronic data,
It went on to observe, bu t not specifically consider, that su ch
footage may be disclosed u nder the common law right to
What is u nclear from an initial reading of these exemptions
access after consideration of the balancing test examining the
and the OPRA in general, is whether these exemptions wou ld
requ estors need for the record versu s the government’s need to
specifically extend to secu rity camera footage, and if so wou ld
k eep the record private.
this be a blank et exemption for all footage or simply for por-
Unfortu nately, I am u naware of any case law where the
tion of the footage that wou ld explicitly pose a secu rity risk ?
common law balancing test has been u sed to examine the
Lu ck ily a 2 0 1 6 decision from the New Jersey Su preme Cou rt
disclosu re of secu rity camera footage. And, even if there is case
examined this issu e and provides some gu idance. In Gilleran v.
law, the common law balancing test is extremely fact specific
Twp. of Bloomfield
, 2 2 7 N.J. 1 5 9 , the Su preme Cou rt held
and each case is examined on an ad hoc basis, meaning a
that when viewed together, the exceptions advanced a
cou rt’s decision wou ld do little to help gu ide in the decision
discernible pu blic policy of k eeping from pu blic scru tiny,
to disclose footage. e
This colu mn is for informational pu rposes only,
and is not intended as legal advice.
I December 2019