Monthly Archives: June 2019

New SCOTUS FOIA Opinion on Confidential Business Information May Affect OPRA

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The U.S. Supreme Court ruled yesterday that FOIA’s exemption for a business’s confidential commercial or financial information applies to information that the business treats as private and gives to the government under an assurance of privacy. Food Marketing Inst. v. Argus Leader Media.

While this holding sounds pretty mundane, the opinion is actually extremely significant. The Court invalidated the standard that the federal courts had consistently applied to this exemption for over 40 years–that commercial or financial information is confidential under FOIA only if its disclosure would cause substantial financial harm to the business. With the Supreme Court’s removal of the harm requirement, it will be easier for businesses (as well as individuals) to shield their commercial and financial information from disclosure under FOIA.

I think this FOIA opinion is going to have an impact on how future New Jersey cases rule on disputes involving the equivalent OPRA exemption for “commercial or financial information obtained from any source.” Similar to the Supreme Court’s analysis in Food Marketing Inst., the Appellate Division opinions that have considered OPRA’s exemption have looked to whether the information is treated as confidential, without regard to considerations of potential harm from disclosure.

However, there are few precedential New Jersey cases on this exemption. Future federal court rulings applying the Supreme Court’s new standard will likely be persuasive in a New Jersey case concerning whether particular business information may be withheld under OPRA’s exemption for commercial and proprietary information.

Court Holds That Identities of Those Who File Internal Affairs Complaints Against Police, and The Identities of the Subjects of the Complaints, Are Confidential

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Requestors often argue that OPRA requires the release of police internal affairs records, such as the names of people who file police misconduct complaints and the names of the officers who were the targets of the complaints. Both the Appellate Division and the GRC have rejected efforts to compel disclosing this information under OPRA, but because these opinions were not precedential, the issue remained unsettled.

That changed today: the Appellate Division issued a published opinion which holds that the names of the complainants, and the officers who were the subjects of these complaints, must be kept confidential.

In FOP v. City of Newark, the court upheld the validity of a Newark ordinance creating a civilian board empowered to investigate citizens’ complaints of police misconduct. In addition, the court determined that the ordinance had two invalid aspects, one of which is pertinent here–it permitted public disclosure of the identities of the complainants and the police officers.

The court said that allowing such disclosure is improper, as it is directly contrary to the requirement of the Attorney General’s Law Enforcement Guidelines that this information must remain confidential. And the court also specifically noted that the ordinance’s disclosure requirement did not comply with OPRA, which provides for the confidentiality of personnel records.

In addition to settling the question of the confidentiality of internal affairs information, this opinion should put to rest the argument made by some requestors, recently discussed here, that OPRA’s personnel exemption should not be applied to law enforcement officers.

Pet Owners’ Home Addresses Should Be Held Exempt Under OPRA

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Records custodians frequently confront the troublesome question of whether individuals’ home addresses must be disclosed under OPRA. For municipalities, this question seems to come up most often in requests for the names and addresses of those who have dog or cat licenses. Although OPRA’s protection of the reasonable expectation of privacy should usually preclude disclosure of this information, some trial court judges have ordered the release of pet owners’ names and addresses.

This article indicates that a judge recently rejected Jersey City’s argument that OPRA’s privacy provision bars disclosure of home addresses listed on dog licenses, and issued similar rulings in cases involving Secaucus and Kearny. According to the article, the requestor wants the information so that he can try to sell invisible fences to dog owners.

In this situation, where a requestor wants home addresses simply to solicit business, I think that OPRA’s privacy exemption prohibits release of this information.

There’s no question that home addresses in the possession of a public body are subject to individuals’ reasonable expectation of privacy. The Supreme Court has held that where this privacy expectation exists, OPRA requires that the privacy interest be balanced against the extent of the public need for disclosure of the information in question. In this situation, where the requestor’s only interest in disclosure is for his own commercial benefit, there is no public interest served in releasing the home addresses. As a result, the balancing test clearly favors confidentiality.

Hopefully, the Appellate Division will eventually correct the mistaken idea that under OPRA, a requestor’s commercial need for home addresses overrides the privacy interests of pet owners.