Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.
The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.
Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.
It’s amazing that during the first 15 years of OPRA’s existence, the courts issued only three precedential opinions on law enforcement records. But it can no longer be said that there’s little precedential law in this area. In the past several months, two important opinions on law enforcement and OPRA have come out, and several other significant law enforcement OPRA cases are about to be decided by the Supreme Court.
Here is a list of recent key law enforcement OPRA cases.
–Gilleran v. Tp. of Bloomfield (Supreme Court): held that building surveillance videos are completely exempt from disclosure.
–North Jersey Media v. Bergen Prosecutor (Appellate Division): held that a law enforcement agency may respond to an OPRA request for records concerning a possible pending investigation by saying it “can neither confirm nor deny the existence of responsive records.”
–Paff v. Ocean County Prosecutor (pending in Supreme Court): whether police vehicle dashcam videos must be disclosed.
-North Jersey Media v. Lyndhurst (pending in Supreme Court): whether various criminal investigatory records must be disclosed.
–Brennan v. Bergen County Prosecutor (pending in Supreme Court): whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction held by a prosecutor’s office
Custodians often struggle with OPRA requests that involve individuals’ home addresses. No court has issued a definitive, published opinion concerning OPRA’s privacy exemption and home addresses.
Fortunately, the Supreme Court is going to provide long-awaited guidance on this issue. On May 8th, the Court announced that it has granted review in Brennan v. Bergen County Prosecutor, which presents the question, according to the Court’s website, of whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction of public property.
See this post for a discussion of the Appellate Division’s opinion in the Brennan case.
The State Supreme Court’s current term is almost over, and the Court has not yet issued opinions in several of the OPRA cases that are before it. As discussed here, these cases involve critical issues, such as access to various law enforcement records, the extent of OPRA’s privacy exemption, the ability of public bodies to file declaratory judgment OPRA suits, the application of OPRA to volunteer fire companies, and custodians’ obligations to compile reports from databases.
Based on the Court’s usual scheduling, we will likely see its opinions in these cases in the next several weeks. So in the very near future, there will be major changes in OPRA law.