The Appellate Division of the New Jersey Superior Court recently held that government agencies are entitled to “neither confirm nor deny” the existence of public records requested under the New Jersey Open Public Records Act (OPRA). While the federal government frequently relies on the so-called “Glomar response,” this is the first time a New Jersey appeals court has considered whether such a response is allowed under OPRA.
The Facts of the Case
A reporter for North Jersey Media Group, Inc., d/b/a Community News, (NJMG) made an OPRA request to the Bergen County Prosecutor’s Office (BCPO) “[i]n furtherance of the newsgathering process” for records concerning a Catholic priest who had not been charged with any crime. To protect the individual’s privacy, the BCPO responded that it could neither confirm nor deny that the records existed. “Exposing information regarding individuals who have not been arrested or charged with any crime is an invasion of privacy and could have devastating repercussions,” the BCPO argued. NJMG filed suit under OPRA.
The Court’s Decision
The Appellate Division held that the BCPO’s response was proper, concluding that although “there is no language in OPRA that explicitly permits an agency to decline to confirm or deny the existence of responsive records, the statute does authorize government agencies to respond to public records requests by stating that they are “unable to comply.”
The court further concluded that records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality based upon long-established judicial precedent. “It is obvious that, in order to protect the confidentiality of persons who have been the subject of investigation but not charged with any offense, the prosecutor must respond to requests for such records uniformly,” Judge Marianne Espinosa wrote. “To deny records exist in some cases and to issue no denial in others would implicitly confirm the existence of records in a particular case, entirely defeating any effort to protect the confidentiality interest at stake.”
Going forward, the appeals court held that an agency may “neither confirm nor deny” the existence of records in response to an OPRA request when the agency (1) relies upon an exemption authorized by OPRA that would itself preclude the agency from acknowledging the existence of such documents and (2) presents a sufficient basis for the court to determine that the claimed exemption applies.
For more information about the court’s OPRA decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.