I’ve noted previously that agencies face the risk that a judge will order disclosure of law enforcement records under the common law right of access, even where those records are confidential under OPRA. See part 3 of this post. The Appellate Division issued such an order yesterday, in an unpublished opinion involving documents in a Division of Criminal Justice (DCJ) investigatory file.

In Lagerkvist v. State of N.J., the plaintiff made an OPRA and common law request for the records of DCJ’s investigation into alleged “double-dipping” pension violations by three individuals in different county sheriff’s offices. The trial judge upheld the denial of the OPRA request, but ordered the release of a few of the documents in the investigatory file under the common law balancing test. The judge also rejected plaintiff’s common law claim as to three documents, and plaintiff appealed that ruling.

The Appellate Division disagreed with the ruling that two of the documents were entirely confidential. In reversing the trial court as to these two records, it emphasized that the investigation was closed and that the documents contained no information about investigative techniques or the agency’s deliberative process. However, the appellate court recognized that some of the information in the documents might be confidential, and remanded the case for this issue to be considered by the trial court.

The Appellate Division did uphold the complete confidentiality of the third record, an internal DCJ memo found to be covered by the deliberative process privilege.

The fact-specific nature of this opinion makes it of little value for guidance in handling future cases. But as mentioned, it’s a reminder that because of the common law right of access to records, agencies may be required to disclose certain records that are confidential under OPRA.