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.