Commentary on the “No need to confirm nor deny” Appellate ruling

by Raymond Baldino, Esq.


NJFOG foreword:

On 8/31/16, the Appellate Division upheld a lower court ruling that the Bergen County Prosecutor’s Office could respond to an OPRA request by North Jersey Media by neither confirming nor denying the existence of records related to a Catholic priest who had not been arrested or charged with a crime. The Appellate ruling allowed the use of what is known as the “Glomar response”, initially applied for national security purposes. Per Wikipedia, “In United States law, the term Glomar response (aka Glomarization or Glomar denial) refers to a “neither confirm nor deny” (NCND) response to a Freedom of Information Act (FOIA) request.”

Attorney Raymond Baldino, a member of NJFOG’s board who is experienced in open government and First Amendment law, provides insightful commentary on the Appellate ruling in the following opinion piece. He profers that while the Appellate Court established that the Glomar response is permitted under OPRA, the ruling may pertain to the particular circumstances in this case only. The future use, and potential abuse, of the Glomar response by public agencies may be a question for future courts.


Case Commentary
North Jersey Media Group v. Bergen County Prosecutor’s Office


The Appellate Division has upheld the use of the so-called “Glomar” response in New Jersey, in the recent decision NJMG v. BCPO. The Glomar response, in the context of an open records request, is a response “neither confirming nor denying” the existence of responsive records. The response is perhaps best known for its use in the context of when sensitive National Security information is requested, and is invoked on the theory that the mere existence of records would itself be exempt information if it exists, however it is also often used in the context of requests for records related to criminal or quasi-criminal investigations that implicate privacy interests.

“Glomar” was the name of a top-secret nuclear submarine that was reportedly created by the CIA for espionage purposes, but whose official existence was denied by the agency in the context of several federal FOIA lawsuits. The use of the Glomar response has been widely criticized by media organizations and open government advocates as a broad and sweeping tool for secrecy that has been abused, especially following the changes in official policy caused by the September 11 attacks.

The doctrine has also been invoked under New York state’s open records law, known as the FOIL, and has been upheld in that context. In New York, the records requests where the Glomar was used were requests for records concerning the NYPD’s program of surveillance of the Muslim population.

In NJMG v. BCPO, however, the requested records concerned an individual who was never arrested or charged with a crime but who was apparently suspected of a serious crime. The individual is not named or described in the opinion and consistent with the same, is not named or described in this commentary. The Bergen County Prosecutor’s office invoked the Glomar response, on the theory that the Prosecutor’s office cannot be required to confirm or deny that investigatory files exist on suspects or other individuals not arrested or not charged. In denying access they relied, inter alia, on the privacy exemptions and the ethical requirements imposed on prosecutors. The trial court affirmed, relying in part on the privacy protections of the New Jersey Constitution, which arguably extended the breadth of New Jersey’s Constitutional privacy rights further than ever previously interpreted.

On Appeal, while the Appellate Division affirmed that the existence or non-existence of the records was properly withheld pursuant to the Glomar doctrine (and also more importantly, that the “Glomar” response is permitted under OPRA), there are a number of bright spots. First, the Appellate Division declined to rely on the New Jersey Constitutional right to privacy, avoiding the issue on the established doctrine that Constitutional questions are avoided where unnecessary. Further, and as a separate issue, the Appellate Division also indicated that OPRA’s privacy exemption did not appear to be the logical exemption that would justify the Glomar response (noting that the privacy exemption appeared appropriate for cases where information was ‘entrusted’ to the government). And, in addition, the Appellate Division held that, unlike under the federal FOIA, when invoking a Glomar response under OPRA, agencies would still be required to meet their burden of justifying denial, and the agency say-so would not be deferred to in the context of the Glomar, as is the case under the federal FOIA. These are extremely positive developments, because it suggests that a high bar may be required in future cases to invoke the Glomar response under OPRA’s privacy exemption or other non-extraordinary circumstances.

Thus, the holding of the Appellate Division may prove to be a narrow, limited holding that applies to the particular context – records of individuals in the hands of law enforcement agency not arrested and not charged.

The Court ultimately based its ruling on the finding that prior decisional law created a “recognized [] need to maintain ‘a high degree of confidentiality’ for records regarding a person who has not been arrested or charged.” The specific provision relied on under OPRA was the so-called anti-abrogation provision, which incorporates decisional law that created claims of exemption or confidentiality prior to OPRA, among other laws. It is unclear whether the Appellate Division’s ruling creates a per se exemption under OPRA for records like those requested by North Jersey Media Group. Ultimately, only future cases will determine whether this will prove to be a narrow decision that provides some means to protect unindicted suspect and confidential source information except but in the most extraordinary circumstances, or whether it will grow into a powerful tool for secrecy that is abused by agencies.

by Raymond Baldino, Esq.
Sept. 16, 2016