OK to neither confirm nor deny records exist, says Appellate Court

In 2013, North Jersey Media sought records from the Bergen County Prosecutor’s Office relating to a Catholic priest who had not been arrested or charged with a crime. The agency denied the request and neither confirmed nor denied the existence of records responsive to it. The media outfit sued and lost at the trial level. The Appellate Division heard the case last year and issued its opinion on August 31, 2016 upholding the lower court ruling.  The Appellate Court wrote:

“This matter concerns a news organization’s request for records from a prosecutor’s office regarding a person who was not charged with any crime pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The prosecutor’s office declined to confirm or deny the existence of responsive records.

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.”


Articles about the ruling:


State appeals court says N.J. may deny access to public records
August 31, 2016


Court: N.J. can act like some public records don’t exist
by Salvador Rizzo, The (Bergen County, N.J.) Record
August 31, 2016


Ruling Protects Governments’ Right to Hide Public Records in New Jersey
By Andrew Seidman
September 1, 2016


(The stories point out how a theory that was initially applied to protect national security in the 1970s has evolved into permitting prosecutors to neither confirm nor deny the existence of records in response to particular requests.  New Jersey is now the second state to lawfully allow the practice, per the author. )