UPDATE (9/10/2016): See bottom of post.
The pivotal question of whether or not a public agency can respond to a request for records by neither confirming nor denying that they exist is before the NJ Appellate Division. -NJFOG
Nov. 17, 2015
By SALVADOR RIZZO
State House Bureau | The Record
(Full article here and re-posted below.)
The state’s largest newspapers and some of the biggest U.S. media companies are challenging a 2013 ruling by a Bergen County judge that they say gives government agencies in New Jersey unprecedented power to deny requests for public records.
Experts call it one of the most consequential legal battles involving privacy rights and government transparency New Jersey has seen in years. A state appeals court heard oral arguments for nearly two hours Tuesday.
The case began when a reporter for North Jersey Media Group, which owns The Record and 49 community newspapers, requested a range of documents and recordings in 2013 that would be kept on file at the Bergen County Prosecutor’s Office.
Working off a tip, the reporter for Community News sought recordings or transcripts of 911 calls, complaints and other documents regarding a Catholic priest who has never been arrested or charged with a crime.
To protect the priest’s privacy, the Prosecutor’s Office neither confirmed nor denied 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 office argued.
The controversy now is not over the records themselves but over what happened next:
When the dispute went to trial, Superior Court Judge Peter Doyne ruled for the first time in New Jersey that a government agency could answer a request for public records by neither confirming nor denying the existence of relevant documents.
“The intrusion into an individual’s life by requesting documents related to an inquiry that did not result in an arrest or charge may well be immense,” Doyne, who is now retired, wrote. “The requested documents invade the rights of privacy all individuals reasonably have come to expect.”
Blocking requests for public records with a “neither confirm nor deny” answer is allowed under some circumstances by the U.S. Freedom of Information Act, which covers federal agencies. But that response had never been upheld by a state judge in New Jersey, where the state’s Open Public Records Act, a different law, requires authorities to provide a statement or specific explanation why they withheld records.
Jennifer Borg, vice president and general counsel for North Jersey Media Group, argued before the appeals court Tuesday that by allowing state agencies to “neither confirm nor deny” that records exist, government officials would have free rein to quash requests for public information without having to provide reasons that could later be challenged in court.
Doyne never saw the documents from the Prosecutor’s Office before issuing his ruling, she noted, and was “speculating” when he found they might damage the priest’s reputation. Usually, when it comes to sensitive documents, judges must balance privacy rights against the public interest before making a decision, she argued.
“How do you balance when you don’t even know whether there are records? What are you balancing?” she asked.
Superior Court Judge Garry Rothstadt, one of three judges on the appeals panel, voiced a similar concern. “Shouldn’t he have looked at the documents before making that determination, if there were documents?” Rothstadt asked John M. Carbone, the attorney representing the Bergen County Prosecutor’s Office.
“There were no charges, there were no indictments, there was nothing to be released,” Carbone argued. He warned against “micromanaging the Prosecutor’s Office” and raised the specter that any person with an ax to grind could file false claims to their local prosecutor and then prod the media to report on those claims.
Superior Court Judge Marianne Espinosa, also on the panel, asked, “Wouldn’t it be awfully easy to really assassinate somebody’s character if you were to make false accusations to the Prosecutor’s Office and then say to the newspaper, ‘I reported these crimes and nothing happened’?”
Thomas J. Cafferty, an attorney at the Gibbons firm representing the Reporters Committee for Freedom of the Press and 25 news organizations, including The New York Times, Wall Street Journal, Asbury Park Press and Star-Ledger, said New Jersey might become the first state to set the “neither confirm nor deny” reasoning as legal precedent outside the federal court system if Doyne’s ruling is upheld.
“A ‘neither confirm nor deny’ response is not appropriate for state government records requests, as it was developed at the federal level to protect national security interests and has since morphed into a broad and damaging secrecy tool,” Cafferty wrote in a legal brief.
On August 31, 2016, the Appellate Court issued its opinion upholding the Prosecutor’s decision to neither confirm nor deny the existence of responsive records in this case. The court wrote:
“In this matter of first impression, we must determine whether the prosecutor’s response was permissible under OPRA and the common law or a violation thereof. For the reasons set forth below, we hold 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. In this case, we conclude 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. Therefore, pursuant to N.J.S.A. 47:1A-9(b), an exemption exists under OPRA that precludes a custodian of records from disclosing whether such records exist in response to an OPRA request. We further conclude that the Bergen County Prosecutor’s Office (BCPO) made a sufficient showing to avail itself of this exemption and that access is also properly denied under the common law right of access.”