In Paff v. Borough of Gibbsboro, the Appellate Division of the Superior Court considered what happens when records requested under New Jersey’s Open Public Records Act become subject to an expungement order while the request denial is pending in court. The panel ultimately concluded that the expungement statute overrides the right to access under OPRA.
The Facts of the Case
Pursuant to OPRA, plaintiff sought release of various documents that were the subject of a pending expungement petition. The focus of the attention was the alleged victim of the crime, a Voorhees Township police officer who the plaintiff suspected had violated department rules.
Record custodians in two New Jersey municipalities denied the OPRA requests, albeit for reasons unrelated to the expungement request. Plaintiff filed suit. Before the civil division decided the OPRA complaint, the criminal division granted the expungement order. The civil division then concluded that the expungement order barred release of the requested documents, under the relevant OPRA exception.
On appeal, the plaintiff argued that the custodians’ denials of his document requests were wrongful when rendered, and the court should have granted him retroactive relief, notwithstanding the intervening expungement order.
The Court’s Decision
The Appellate Division disagreed. After analyzing both OPRA and the state’s expungement statute, the court concluded that the expungement order’s prohibition of disclosure trumps the power of the court to order the remedy of access under OPRA.
The court acknowledged that the expungement order was not in place at the time of the records request. “Thus, neither the expungement statute, nor an exemption under OPRA, excused the custodians’ failure to disclose,” the court noted in its opinion.
However, by the time the plaintiff filed the complaint, the expungement order was in place. According to the court, OPRA does not preclude such an order from becoming effective immediately. Moreover, OPRA provides that it shall not “abrogate” any exemption from disclosure made pursuant to any statute, and shall not “abrogate or erode” any “grant of confidentiality heretofore established by . . . statute[.]”
The court also concluded that the expungement statute does not authorize disclosure except by specific exemption. It further noted that “there is no provision for release based on a request for documents that preceded entry of the order.”
Accordingly, the court concluded that the expungement order “removes the record from OPRA’s ambit, thereby avoiding conflict with a statutory right to confidentiality.”
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.