School administrators constantly receive Open Public Records Act[1] (OPRA) requests. Often such requests are evaluated based only on OPRA. However, the common law right of access may also apply and may even override an enumerated OPRA exception. Moreover, though OPRA provides for exceptions, they are not necessarily categorical.

In Zezza v. Evesham Board of Education,[2] for example, under both OPRA and the common law right to access, Helen Zezza (Zezza) requested about thirty-five seconds of district surveillance footage taken by two cameras located at the Rice Elementary School. She requested the footage because after she attended her grandson’s baseball game, she took him to the school playground. Once there she was “verbally accosted,” threatened, and poked in the chest by Coleen McCullough. The incident was captured by district cameras. A disorderly person complaint was filed against McCullough in municipal court. The district denied the request under OPRA’s security exception. Zezza challenged the district’s determination.

The lower court held that Zezza had a right to obtain the video footage under both OPRA and the common law. In the lower court’s view, Gilleran v. Twp of Bloomfield,[3] cited by the district, does not automatically prevent disclosure of security footage if disclosure does not reveal information about a building’s security scheme that could compromise safety.[4] Under Zezza, the lower court judge explained that the district had the burden of demonstrating its security concerns. The judge was not convinced that the requested limited snapshot would jeopardize building and grounds security. The judge also commented on the absurdity of using the OPRA security exception to prevent the disclosure of evidence of potential criminal activity from reaching the municipal court hearing the disorderly conduct matter.[5]

The Appellate Division affirmed the lower court decision.[6] The Court reasoned, under OPRA the State’s public policy is that government records shall be readily accessible for inspection, copying, and examination by its citizens. Government records are broadly defined as:

any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof…[7]

OPRA exempts, disclosure of “emergency or security information or procedures for any building or facility which, if disclosed, would jeopardize the 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…” [8]

Here, the Court rejected the district’s claim that Gilleran imposed a blanket exception for all such materials. The Court explained the Gilleran request was far broader, seeking a days’ worth of security camera footage from a stationary camera attached to the second floor overseeing the rear of the town hall building. In that case, the camera was installed in a manner that enabled it to survey the neighboring police building. The security footage would also show crime victims and informants entering and leaving the police building as well as police and town personnel.

Though Gilleran affirmed the town’s decision not to disclose the footage, the opinion also emphasized that there is no blanket exception for security information. Thus, in Zezza, the Court concluded that the district failed to meet its burden of establishing that the requested security information if disclosed, would create a risk to the security of the facility or the people within the facility.[9]

Importantly, even if an OPRA exemption applies to the records requested, the government entity might still be required to disclose otherwise exempt records under the common law right to access. In Rivera v. Union County Prosecutor’s Office et al.,[10] the Union County Prosecutor’s Office denied an OPRA and common law right of access request to disclose an internal affairs investigation report which found that the former director of the Elizabeth Police Department engaged in racist and sexist behavior in the office. The New Jersey Supreme Court agreed that such an internal investigation report may not be disclosed under OPRA but could and should be disclosed under the common law right of access when the interests that favor disclosure outweigh confidentiality concerns.[11]

The Court explained that the factors, previously itemized under the common law, to be considered to make this determination are: (1) the nature and seriousness of the misconduct; (2) whether the alleged misconduct was substantiated; (3) the discipline imposed; (4) the nature of the official’s position; and (5) the person’s record of misconduct.

Here, the Court regarded the public’s interest in disclosure as great because the investigation confirmed that the civilian head of the police department engaged in racist and sexist behavior for many years. The State Attorney General had even issued a statement concerning the conduct investigated which included employing racist and misogynist slurs.

The Court also noted that OPRA does not limit the common law right of access to government records. The Court restated the test to determine if disclosure is warranted under the common law right to access as outlined in Loigman v. Kimmelman.[12] The elements to consider are (1) the extent to which disclosure will impede agency functions by deterring citizens from providing information; (2) the impact disclosure may have upon individuals who provided information and expected to do so confidentially; (3) the extent to which agency self-evaluation will be impeded; (4) the extent to which the information sought is factual as opposed to evaluative; (5) whether the misconduct has been adequately corrected by remedial measures; and (6) whether the agency has implemented any disciplinary or investigatory proceedings that may circumscribe the requestor’s need for the materials.[13]

In the Rivera Court’s view, the factors that could weigh more heavily in favor of disclosure are (1) the nature and seriousness of the underlying misconduct; (2) whether the investigation substantiated the alleged misconduct; (3) whether serious discipline such as long-term suspension or termination was imposed; (4) whether the investigation concerns a high- ranking official; and (5) whether the official has a previous record of misconduct. All the above factors support transparency to expose issues to reassure the public that future police conduct will be appropriate. The Court also cautioned its decision was not prefaced upon whether the misconduct allegations had already been known by the public due to leaks.[14] The Court further noted that to adequately balance the interests for disclosure, the party denying the disclosure must provide more than just conclusory statements. Here the Attorney General’s Office agreed that parts of the internal investigation report should be disclosed; the Court remanded the matter to determine the appropriate scope of disclosure.[15]

The overwhelming number of OPRA/common law access requests can sometimes cause district offices to process the same without examining the full breadth of the applicable law. If your district intends to assert an OPRA exemption as the reason to deny a request, it is advisable to contact the board attorney before making a final determination.