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The Appellate Division has issued an important ruling regarding OPRA and access to investigatory records through OPRA. In North Jersey Media Group v. Bergen County Prosecutor’s Office, the court held:

  1. that the Glomar doctrine, i.e. the ability to refuse to confirm or deny the existence of responsive records when those records are exempt under an existing exemption, is available under OPRA in certain circumstances;
  2. pursuant to N.J.S.A. 47:1A-9(b) an exemption exists for information received or maintained by law enforcement agencies regarding a person who has not been arrested or charged with an offense ; and
  3. reiterated that Vaughn indexes are not appropriate in every case, particularly when there is a  valid Glomar response.

In Bergen County Prosecutor’s Office, a local newspaper requested records under OPRA and the common law regarding a specific individual. The BCPO responded by stating:

You have requested records related to someone who has neither been arrested nor charged with committing an offense. In essence, this amounts to inquiring whether a person who has neither been arrested nor charged with committing an offense is, or has been, the subject of an investigation. The [BCPO] will neither confirm not deny whether an individual who has neither been charged nor arrested is, or has been, the subject of an investigation….Id. Slip. Op at 4.

The plaintiff appealed this denial, seeking a declaratory judgment that the BCPO had violated OPRA and the common law right of access. The trial court upheld the denial. The Appellate Division affirmed.

The Appellate Division held that the Glomar doctrine, i.e. the ability to refuse to confirm or deny the existence of responsive records when those records are exempt under an existing exemption, is available under OPRA in certain circumstances. This doctrine originated under the Federal Freedom of Information Law. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). However, the Appellate Division made clear that, “the agency that relies upon a Glomar response must provide the applicability of a specific exemption.” Ibid. Bergen County Prosecutor’s Office, Slip. Op. at 15. Additionally, the “agency may satisfy this burden by submitting an affidavit that describes the justifications for nondisclosure with reasonable specific detail, demonstrates that the information withheld logically falls within the claimed exemptions, and shows that the justifications are not controverted by contrary evidence in the record or by evidence of bad faith.” Id. at 15-16; citing Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992).

The Appellate Division clarified that, pursuant to N.J.S.A. 47:1A-9(b), an exemption exists for information received or maintain by law enforcement agencies regarding a person who has not been arrested or charged with an offense. Ibid. Bergen County Prosecutor’s Office at 25.  The court stated:

N.J.S.A. 47:1A-9(b) has three requirements for a grant of confidentiality to shield a record from disclosure under OPRA. First, there must be a grant of confidentiality established or recognized by any of the enumerated authorities. Second, the nature of the privilege must provide a reasonable basis for the restriction of public access to the record. Third, the privilege must have been established or recognized prior to the enactment of OPRA. Id. at 23.

The court held that,

“all three requirements are met as to confidentiality of information regarding a person who has not been arrested or charged with an offense.” Id. at 24. After reviewing existing case law, the court found that “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.” Id.

Thus, the Appellate Division affirmed the BCPO’s basis for denial.

Lastly, the Appellate Division reiterated that Vaughn indexes are not appropriate in every case. The court stated:

Neither OPRA nor FOIA calls for the production of a Vaughn index in every case in which access is denied. Although the use of such a log has become customary, courts that have considered this issue have cautioned that the production and review of a Vaughn index is not appropriate in every case. Federal courts have ruled that, when an agency submits a Glomar response supported by an affidavit that is “sufficient to establish that the requested documents should not be disclosed, a Vaughn index is not required.” Id. at 20, citing Minier v. CIA,88 F.3d 79, 804 (9th Cir. 1996).

Thus, the Appellate Division indicates that Vaughn indexes may not always be required, particularly when there is a valid Glomar response.

This is an important decision which might be appealed to the State Supreme Court. We suggest that you review it with your police department and municipal attorney.

Contact: Ed Purcell, Esq. at (609) 695-3481 x. 137 or epurcell@njslom.org

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