North Jersey Media Group Inc., D/B/A Community News Vs.
146 A.3d 656
| N.J. Super. Ct. App. Div. | 2016Background
- North Jersey Media Group (NJMG) submitted an OPRA request seeking law‑enforcement records relating to an individual (A.B.C.) who was not arrested or charged.
- Bergen County Prosecutor's Office (BCPO) refused to confirm or deny whether responsive records existed (a "Glomar" response), citing investigatory confidentiality, privacy, and ethical constraints on prosecutors.
- NJMG sued under OPRA and the common law right of access seeking an order compelling disclosure and a Vaughn index; BCPO submitted sealed materials to the trial court.
- The trial court denied relief, concluding privacy interests outweighed the public interest and dismissed NJMG's complaint.
- On appeal the Appellate Division addressed whether an agency may decline to confirm or deny existence of records under OPRA and whether records about uncharged persons are exempt.
- The court affirmed: it recognized an OPRA exemption (via N.J.S.A. 47:1A-9(b)) protecting records concerning persons not arrested/charged and upheld denial under the common law balancing test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an agency may "neither confirm nor deny" existence of records in response to an OPRA request | OPRA requires identification of responsive records; Glomar responses are not authorized and shift burden to requester | A Glomar response is permissible when an applicable exemption would itself bar acknowledging existence of records and the agency provides sufficient factual support | Held: A Glomar response is permissible under OPRA when tethered to an applicable exemption and the agency supplies sufficient justification |
| Whether information about persons not arrested or charged is exempt from disclosure under OPRA | Requestor: No specific statutory exemption authorizes withholding or refusing to confirm existence; agency must identify records and rely on enumerated OPRA exemptions | BCPO: Longstanding judicially recognized confidentiality for investigatory information about uncharged persons qualifies under OPRA § 47:1A-9(b) (existing privileges/confidentiality) | Held: Records relating to uncharged persons are protected by confidentiality recognized pre‑OPRA and therefore fall within N.J.S.A. 47:1A-9(b), permitting non‑acknowledgment |
| Whether BCPO met its burden to justify non‑disclosure without an explicit citation to § 47:1A-9(b) or a Vaughn index | NJMG: BCPO failed to certify facts establishing exemption; trial record insufficient; court should have required a Vaughn index or in camera review | BCPO: its response, certification and ethical rules explained the harms of identification; a Vaughn index is not always required where acknowledgment itself would reveal protected facts | Held: BCPO provided sufficiently specific justification to demonstrate the exemption applies; a Vaughn index was not required in this context |
| Whether the common law right of access required disclosure | NJMG: common law access remains and is broader than OPRA; BCPO's refusal left insufficient record for balancing | BCPO: common law access is qualified; balancing (privacy vs. public interest) favors nondisclosure for uncharged persons | Held: On common‑law balancing (Keddie/Loigman factors), the privacy/confidentiality interests prevail and disclosure was not required |
Key Cases Cited
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar non‑acknowledgment response)
- Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) (Glomar doctrine availability and requirement that refusal be tethered to a FOIA exemption)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index concept—describing withheld documents and claimed exemptions)
- Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) (affidavit sufficiency to support Glomar response)
- People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535 (D.C. Cir. 2014) (applying Exemption 7(C) privacy rationale to Glomar responses)
- Loigman v. Kimmelman, 102 N.J. 98 (1986) (factors for balancing access against confidentiality)
- Burnett v. Cnty. of Bergen, 198 N.J. 408 (2009) (OPRA's public‑access purpose and application of privacy considerations)