Today, June 11, 2010, Judge Kathryn Brock heard more argument in my OPRA and common law access case against the Borough of Garwood. At issue, readers may recall, is a DVD of former Garwood Police Officer Gennaro J. Mirabella, while in uniform, entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers.
Background on the case can be found here and here.
First, Judge Brock decided that Mirabella, since he has not contacted the court with a request to be heard, is not interested in the case and thereby has conceded that he has no claim that his privacy would be violated by release of the DVD.
Next, Judge Brock posed an interesting question: Is evidence in a criminal case, such as a bag of marijuana or a firearm, within the scope of an expungement order such that those items of evidence would be isolated and made unavailable to public view once an expungement order was entered? If not, she suggested, then why would the DVD at issue in this case be exempt from public access?
My lawyer, Rick Gutman, said that he agreed that the DVD is not shielded by the expungement order but that even if it was, there was still a compelling need for the public to see it, and that the expungement statute, specifically N.J.S.A. 2C:52-19, authorized Judge Brock to release it.
Garwood's attorney, Robert F. Renaud, said that the DVD is clearly a record protected from disclosure by the Mirabella's expungement order, and that the court's power to release expunged records, as set forth in N.J.S.A. 2C:52-19, didn't apply to OPRA and common law actions.
After reserving decision on the question of whether the expungement order requires that the DVD remain confidential, Judge Brock then asked Mr. Renaud to explain why my interest, under a common law balancing test, was less than the Borough's need to keep it confidential.
Mr. Renaud argued that my interest in the DVD was slight because "Paff just wants to see it" and that if the DVD were to be released, people could determine where the police hid the camera and that would expose an "investigative technique" and would make it harder for the police to place the camera in the same spot if it needed to do so in the future.
He then went on to compare the placement of the camera in the Chief Financial Officer's office to a camera placed by police in an apartment's window to record illegal drug transactions occurring on the street. But, Judge Brock said that the reason why the video of drug transactions needs to be kept secret is to prevent the owners of the apartment who cooperated with the police from being identified because the drug dealers might retaliate against them. Since the concern for retaliation doesn't exist in this case, Judge Brock seemed to dismiss Mr. Renauld's analogy.
Mr. Gutman argued, and the judge seemed to agree, that it's not just my personal interest in watching the DVD that's important in this case but rather that the general public has a right to see it because the case involves police misconduct and possible favoritism being given to Mirabella, who is from a very politically connected family.
In the end, Judge Brock said that she's going to review the whole matter and render an opinion within 30 days.