Since OPRA’s enactment, public bodies have struggled with requests that affect privacy interests. When presented with such a request, custodians must determine if there’s a reasonable expectation of privacy, and then apply a balancing test, weighing the strength of the privacy interest against the need for public disclosure of the information in question. The case law does not provide definitive guidance on handling these issues, because courts have reached differing conclusions on what information is entitled to privacy, depending on the facts of the particular case.

The two opinions issued by the Supreme Court over the past year on privacy under OPRA illustrate this problem. Last summer, in Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications  it upheld the confidentiality of a firefighter’s financial relief award, emphasizing the strong privacy interests that individuals have in their personal financial information.

In May 2018, the Court ruled that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed, without even applying the balancing test. Brennan v. Bergen County Prosecutor’s Office. The Court concluded that people bidding at an agency’s public auction could not reasonably expect their names and addresses to be private.

These cases, while important, have little applicability to OPRA requests that don’t involve bidders’ information or an individual’s financial status. Perhaps the Supreme Court’s upcoming opinion in Paff v. Ocean County Prosecutor, which concerns the privacy interests of those shown in police videos, will provide broader guidance on the contours of OPRA’s privacy provision.

The Supreme Court ruled today that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The Appellate Division had determined that the balancing test applicable to OPRA privacy claims weighed in favor of privacy here, but the Supreme Court stated that the balancing test did not apply in this case. The Court said the balancing analysis is to be conducted only where there is a “colorable claim” that access to the information would invade an “objectively reasonable expectation of privacy.”

The bidders here had no such colorable argument, according to the Court; it concluded that people bidding at an agency’s public auction–“a quintessential public event”–could not reasonably expect their names and addresses to be private. As a result, there was no basis to withhold this information under OPRA’s privacy exemption.

Unfortunately, the Court did not resolve the question that has caused difficulty for custodians since OPRA’s enactment–are home addresses exempt from disclosure under OPRA’s privacy protection? The Brennan opinion deals only with bidders’ information, and offers no guidance on how to handle the many other situations where an individual’s address is shown on correspondence or some other document held by a government entity.

I recently presented a seminar to a large group of government attorneys and record custodians on OPRA’s privacy provision. One of the themes of my presentation was that the courts have issued only a handful of precedential opinions on this aspect of OPRA, providing agencies with little guidance on how to handle privacy issues.

Coincidentally, at practically the same time I was making my presentation, the Supreme Court issued an important opinion on OPRA’s privacy exemption, Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications. As I predicted after the oral argument of this case, the Court came down firmly on the side of privacy in this case, and denied the request for disclosure of a firefighter’s relief award.

This opinion is especially notable because it shows that the Court gave heavy weight to the privacy interests that individuals have in their personal financial information.  The Court emphasized the strong need to protect these privacy interests and saw no real public interest in access to the information in question.

It can no longer be said that there’s a lack of judicial guidance on OPRA and privacy. The Supreme Court has clarified that privacy interests must be favored by public agencies, despite OPRA’s general policy of public access to information held by the government.