In an important opinion, the Appellate Division held yesterday, for the first time under OPRA, that an agency may decline to confirm or deny the existence of responsive records in answering a request for records concerning a person who has not been charged with a crime. North Jersey Media v. Bergen County Prosecutor’s Office.

As I explained in this post, this approach (known as the “Glomar” response) has long been permitted under FOIA as a way to avoid the disclosure of exempt, sensitive information, such as whether an individual was or is under investigation. The Appellate Division held that OPRA allows the “neither confirm nor deny” response for the same reason.

Specifically, the court said that OPRA’s exemption for a grant of confidentiality recognized by case law (N.J.S.A. 47:1A-9b) applies here. The court found that case law has long recognized the need for confidentiality of investigative records regarding a person who has not been arrested or charged.