Update: July 27, 2010: The 130-page transcript of the April 30, 2010 hearing is on-line here.
As previously announced, my Attorney Rick Gutman and I appeared before the Hon. Kathryn A. Brock at the Union County Courthouse on Friday, April 30th, to argue entitlement to a surveillance video that reportedly showed former Garwood Police Officer (and brother of a Union County Freeholder) Gennaro J. Mirabella entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers. The hearing lasted nearly three hours.
We lost on our Open Public Records Act claim because Judge Brock held that the tape is exempt a) as a "criminal investigative record" and b) because disclosure may improperly reveal security measures and surveillance techniques.
In order to bolster its "security measures" claim, Garwood had submitted an unsigned certification by its Police Chief, William Leg, which stated: ". . . the Borough's safe, in which important records and other materials are kept, is depicted in the video. This is something which, if disclosed, would also jeopardize the security of the building and create a risk to safety." During argument, Garwood's attorney, Robert F. Renaud, suggested that the video would show a criminal the exact location of the Borough's safe, thereby allowing the miscreant to bore a hole in the municipal building's roof directly over the safe to allow for its easy extraction. (Legg's certification is on page 67 of the PDF file here.)
After losing the OPRA claims, Mr. Gutman proceeded to explain why the public's interest in viewing the recording was greater than Garwood's interest in keeping it confidential. If we could prove this, we would get the tape under the common law right to access records, even if we were not able to get it under OPRA.
It was at this point that Mr. Renaud informed Judge Brock that he had with him a copy of the recording and portable DVD player and would show it to her in chambers if she wished. After she initially declined, Mr. Renaud again made his offer and this time she accepted. Mr. Gutman said that he wanted to view the video too, and his request was allowed provided that he promised not to disclose to me or anyone else what the video contained. Judge Brock and the two lawyers then went into the back room to watch the video and emerged a few minutes later.
The conversation that then took place between the judge and the lawyers made it clear that the Borough's safe, which Chief Legg claimed to have been visible on the video, was NOT visible on video. Instead, according to Judge Brock, the video showed Officer Mirabella enter the office, open a door to a closet or an adjoining room, look through and then close that door, walk to a desk and open its drawers and then leave the room. The door that Mirabella opened was apparently visible on the video but the camera was positioned such that one could not see into the room that was behind the door.
I will quote Mr. Renauld's explanation as to why Chief Legg stated that the safe was visible on the video as best as I can remember: "Even though you can't see the safe itself, I know that there is a safe behind the door that Mirabella opened, Chief Legg knows that there's a safe there and the Clerk knows that there's a safe there." Judge Brock responded "But, I would have never known there was a safe behind that door unless you had told me."
The hearing then wrapped up pretty quickly. While we still lost on our OPRA claim (although Judge Brock, after seeing the video, probably reversed her position on the "security measures" issue, she had still found the video exempt as a criminal investigatory record), she was not prepared to make a determination on our common law access claim. She seemed impressed with Mr. Gutman's argument that the public has a great interest in viewing a video showing wrongdoing by a uniformed police officer, especially in light of the public controversy that arose after it was learned that the officer is a Union County Freeholder's brother, that the charges against him were dropped and that he was allowed to resign in good standing.
Judge Brock scheduled another hearing for June 11, 2010 at which time she will consider our common law claim and whether the fact that Mr. Mirabella had the charges expunged from his record has any impact on our entitlement to the video. She ordered that Mr. Mirabella be given notice of this hearing so that he can enter into the action to assert any privacy interests that he might have.
Judge Brock's April 30, 2010 Case Management Order has been posted on-line here.