Ruling Protects Governments' Right to Hide Public Records in New Jersey

by | September 1, 2016

By Andrew Seidman

A New Jersey appeals court on Wednesday ruled that government agencies may "neither confirm nor deny" the existence of records in response to requests for information by the public, delivering a blow to citizens and news organizations wary of more secretive government.

Indiana is the only state that permits such a response by law, according to the decision. However, the so-called Glomar response dates to the 1970s in federal cases, when the CIA fought a request under the Freedom of Information Act, citing national security interests.

At issue Wednesday was the Bergen County Prosecutor's Office's response to a 2013 request, filed under the state's Open Public Records Act (OPRA), by a newspaper for records regarding a Catholic priest who had not been arrested or charged with a crime.

The prosecutor's office told a reporter for Community News, formerly owned by North Jersey Media Group and now by Gannett, that the request amounted to inquiring whether the person was the subject of an investigation. The office said it would neither confirm nor deny that information, since "identifying the target of such allegations could unfairly subject that individual to irreparable harm" and expose the office to litigation.

North Jersey Media Group sued, arguing the prosecutor had violated OPRA and the common law right of access. Twenty-five other news organizations and the Reporters Committee for Freedom of the Press filed friend-of-the-court briefs in support of North Jersey Media Group.

On Wednesday, a three-judge appeals panel affirmed a lower court's decision that the prosecutor's response was permissible, though it used different legal reasoning. The decision could be appealed to the state Supreme Court.

Although OPRA doesn't explicitly permit "an agency to decline to confirm or deny the existence of responsive records," the panel said such a reply "falls within the category of 'unable to comply' and is subject to review under that standard."

"In sum, before OPRA was enacted, judicial decisions recognized the need to maintain 'a high degree of confidentiality' for records regarding a person who has not been arrested or charged," Judge Marianne Espinosa wrote for the panel.

"The confidentiality accorded such information promotes both the integrity and effectiveness of law enforcement efforts for the benefit of the public at large. In addition, the grant of confidentiality protects the privacy interest of the individual who, lacking an opportunity to challenge allegations in court, would face irremediable public condemnation."

(c)2016 The Philadelphia Inquirer