North Jersey Media Group Inc., D/B/A Community News Vs. , 447 N.J. Super. 182 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2393-13T3
NORTH JERSEY MEDIA GROUP INC.,
d/b/a COMMUNITY NEWS, APPROVED FOR PUBLICATION
Plaintiff-Appellant, August 31, 2016
v. APPELLATE DIVISION
BERGEN COUNTY PROSECUTOR'S
OFFICE and FRANK PUCCIO, in
his capacity as Custodian of
Records for the BERGEN COUNTY
PROSECUTOR'S OFFICE,
Defendants-Respondents.
________________________________________________________________
Argued November 17, 2015 – Decided August 31, 2016
Before Judges Fisher, Espinosa and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
6741-13.
Jennifer A. Borg, General Counsel, argued the
cause for appellant (North Jersey Media Group,
Inc., attorneys; Ms. Borg, of counsel and on
the briefs; Robert D. Thompson and Bobby D.
Conner, on the briefs).
John M. Carbone argued the cause for
respondents (Carbone and Faasse, attorneys;
Mr. Carbone, of counsel and on the brief;
Frank T. Puccio, on the brief).
Thomas J. Cafferty argued the cause for amici
curiae The Reporters Committee for Freedom of
the Press and 25 Media Organizations (Gibbons
PC, and Bruce D. Brown of the Massachusetts
and District of Columbia bars, admitted pro
hac vice, attorneys; Mr. Cafferty, of counsel
and on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
This matter concerns a news organization's request for
records from a prosecutor's office regarding a person who was not
charged with any crime pursuant to the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of
access. The prosecutor's office declined to confirm or deny the
existence of responsive records.
In this matter of first impression, we must determine whether
the prosecutor's response was permissible under OPRA and the common
law or a violation thereof. For the reasons set forth below, we
hold that an agency may "neither confirm nor deny" the existence
of records in response to an OPRA request when the agency (1)
relies upon an exemption authorized by OPRA that would itself
preclude the agency from acknowledging the existence of such
documents and (2) presents a sufficient basis for the court to
determine that the claimed exemption applies. In this case, we
conclude that records relating to a person who has not been
arrested or charged with an offense are entitled to confidentiality
based upon long-established judicial precedent. Therefore,
pursuant to N.J.S.A. 47:1A-9(b), an exemption exists under OPRA
2
A-2393-13T3
that precludes a custodian of records from disclosing whether such
records exist in response to an OPRA request. We further conclude
that the Bergen County Prosecutor's Office (BCPO) made a sufficient
showing to avail itself of this exemption and that access is also
properly denied under the common law right of access.
I.
Plaintiff, North Jersey Media Group, Inc., d/b/a Community
News (NJMG), appeals from an order that dismissed its complaint
against defendants, BCPO and its custodian of records, Frank
Puccio, alleging a violation of OPRA and the common law right of
access. One of NJMG's reporters1 made an OPRA request to the BCPO
"[i]n furtherance of the newsgathering process" for records
concerning a person who had not been charged with any crime, whom
we shall refer to as A.B.C. The following records were requested:
1. All law enforcement reports filed against
or involving [A.B.C.] from January 1, 2003 to
present.
2. All complaints and/or reports (verbal or
written) made to law enforcement officials
concerning [A.B.C.] from January 1, 2003 to
present, including, but not limited to, his
work at [three designated places of
employment.]
3. Recordings and/or transcripts of 911
calls and/or non-emergency calls made between
1
According to its complaint, NJMG publishes two daily newspapers,
two websites and nearly forty weekly newspapers, including
Community News.
3
A-2393-13T3
January 1, 2003 and present related to
[A.B.C.]
4. Written communications (e.g. emails and
letters) to, from and/or between:
a. BCPO and [A.B.C.]
b. BCPO and [A.B.C.'s] attorney
c. [A.B.C.'s employer]/Any
representatives or
affiliates . . . .
BCPO responded to this request by letter that stated in part:
You have requested records related to
someone who has neither been arrested nor
charged with committing an offense. In
essence, this amounts to inquiring whether a
person who has neither been arrested nor
charged with committing an offense is, or has
been, the subject of an investigation. The
[BCPO] will neither confirm nor deny whether
an individual who has neither been charged nor
arrested is, or has been, the subject of an
investigation. Law enforcement agencies
routinely receive allegations that are
determined to be unprovable, unfounded or
untrue. Identifying the target of such
allegations could unfairly subject that
individual to irreparable harm and subject
this office and its employees to civil
liability and professional discipline. It is
for this reason, among others, that grand jury
proceedings are conducted in secret. More
instructively, even when a crime has been
committed, [OPRA] does not require a law
enforcement agency to name suspects. When no
arrest has been made, OPRA only requires a law
enforcement agency to disclose "the type of
crime, time, location and type of weapon, if
any." N.J.S.A. 47:1A-3b. By not including
the names of suspects in the list of items to
be disclosed, the Legislature wisely chose to
protect suspects who may be exonerated without
being charged from the public scorn and stigma
4
A-2393-13T3
that can arise from being the target of a
criminal investigation.
[(Emphasis added).]
BCPO defended its refusal to confirm or deny the existence
of such records:
To suggest that a law enforcement agency must
confirm or deny that someone is or has been
has been [sic] the subject of an investigation
even when no crime may have occurred by
stating that records related to that
individual are exempt from disclosure because
they are criminal investigatory records is to
create precisely the problem that the
Legislature sought to avoid in enacting
N.J.S.A. 47:1A-3b. Nothing in OPRA suggests
such an unjust result and fundamental fairness
prohibits it.
BCPO also wrote to the Government Records Council (GRC),
seeking "both an advisory opinion and review/appeal" that would
affirm the denial of access to the records sought, grant access
to the records, or find "a clear and specific exemption from
release of the records sought." In support of its denial of
access, BCPO reviewed authorities for the proposition that
information received by law enforcement authorities concerning
possible criminal activities should be treated as confidential and
privileged against disclosure and cited both the New Jersey Rules
of Professional Conduct for Attorneys and the right to privacy
guaranteed by the New Jersey Constitution.
5
A-2393-13T3
Following BCPO's request for review by the GRC, NJMG filed
an order to show cause and verified complaint, asserting its
statutory prerogative to have the denial of access adjudicated by
the Superior Court, N.J.S.A. 47:1A-6, and seeking declaratory
judgment that BCPO violated OPRA and the common law right of
access. The complaint also asked the court to require BCPO to
submit a Vaughn index, in which the custodian of records identifies
responsive documents and the exemptions it claims warrant non-
disclosure. Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.
1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d
873 (1974); see also N.Y. Times Co. v. U.S. Dep't of Justice, 758
F.3d 436, 438 (2d Cir. 2014); Minier v. CIA, 88 F.3d 79, 803-04
(9th Cir. 1996).
The Bergen County Prosecutor, John L. Molinelli, submitted a
certification that stated, in part:
2. I invoke and utilize all available
privileges and exemptions to bar the release
of the documents requested herein, including,
but not limited to, criminal investigatory
records, confidential, privacy and as
otherwise permitted under the laws of the
State of New Jersey.
. . . .
4. In this instance and in others
previously, unless an arrest has been made,
charges are filed or a grand jury indictment
is returned, I, as the Bergen County
Prosecutor, will not respond to an inquiry
about the receipt or possession of documents
6
A-2393-13T3
or the existence or non-existence of a
criminal investigation.
5. I believe this position is necessary and
proper due to the constraints placed upon me
by the Rules of Professional Conduct;
particularly RPC 3.6 and 3.8.
6. Many times, when allegations contained in
a letter or other communication are received
by this office and are investigated, the
allegations are found to be untrue or its
[sic] determined that the allegations cannot
be proven or the actions of the person
implicated do not rise to a level of criminal
conduct.
7. Disclosing, confirming or identifying
the subject or content of such allegations as
communicated would unfairly subject that
person to irreparable harm and possibly raise
against the [BCPO] a tort action by the person
so identified for false light claims and civil
liability.
8. When a reporter seeks such confirmation
as a result of a tip, communication from the
individual making the allegations, or an
undisclosed, "off the record," not for
attribution or deep throat source, it should
not be the Prosecutor giving veracity,
notoriety, approbation or confirming the issue
for the press.
[(Emphasis added).]
BCPO later submitted, ex parte, documents described by the
trial judge as "a sealed envelope containing a certification of
[the custodian of records], including a two page Vaughn Index and
a second sealed envelope containing copies of what defendants
assert to be the criminal investigatory records." The trial judge
7
A-2393-13T3
declined to examine the documents or Vaughn index because they
were submitted under seal.2
The trial judge denied the relief sought and dismissed NJMG's
complaint. In his written opinion, the judge rejected BCPO's
contention that the criminal investigatory record exemption
applied "because the record is void of any evidence of a pending
investigation." Addressing BCPO's argument that disclosure would
violate individual privacy rights, the judge considered and
weighed the factors relevant to a determination whether the need
for disclosure outweighs individual privacy concerns. See Burnett
v. Cnty. of Bergen, 198 N.J. 408, 427 (2009); Doe v. Poritz, 142
N.J. 1, 88 (1995). He concluded, "records related to the
investigation of an individual that has not been arrested [or]
charged with a crime generally must not be disclosed as privacy
concerns outweigh the public's need for the information." Turning
to NJMG's claim that disclosure was required based upon the common
law right of access, the judge considered and weighed the factors
identified in Loigman, supra, 102 N.J. at 113, and concluded access
to such records was not warranted under the common law right of
2
The stated reason for the judge's decision not to review the
Vaughn index submitted under seal was that he was not provided
with any authority that permitted an in camera submission of the
index. The Supreme Court has recognized that, in rare cases, an
in camera submission is appropriate. Loigman v. Kimmelman, 102
N.J. 98, 111 (1986).
8
A-2393-13T3
access because "disclosure of the requested information [would be]
an unreasonable invasion of individual privacy."
NJMG raises a number of arguments in its appeal. First, NJMG
challenges the trial court's interpretation of OPRA, contending
the court created a new exemption for the denial of access to
public records that is: not articulated in OPRA, inconsistent with
its plain language; renders statutory provisions, i.e., N.J.S.A.
47:1A-3(b) and N.J.S.A. 47:1A-8, meaningless; and shifts the
burden of proof from the public agency to the requestor of public
records. NJMG argues further that, because defendants failed to
certify facts to support their contention that requested records
related to a person who had not been charged with a crime, the
trial court relied upon an insufficient record and defendants
failed to satisfy their burden of proof, N.J.S.A. 47:1A-6. NJMG
also contends the trial court erred in misapplying the factors
identified in Burnett and Loigman and in failing to require a
Vaughn index or conduct an in camera review. Finally, NJMG argues
the trial court erred in holding that its OPRA request implicates
personal privacy rights protected by the New Jersey Constitution
because this argument was not properly raised in the trial court.
BCPO argues the trial court relied upon existing statutory
exemptions, did not create a new exemption under OPRA, and properly
weighed relevant facts and authorities.
9
A-2393-13T3
We granted amicus curiae status to The Reporters Committee
for Freedom of the Press and twenty-five media organizations.3 In
addition to joining NJMG's arguments, amici argue the response to
neither confirm nor deny the existence of responsive documents,
which has been permitted in response to requests for records under
the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552, has been
overused and abused and should not be permitted in response to an
OPRA request.
In light of our conclusion that the refusal to confirm or
deny the existence of records relating to a person who has not
been charged with an offense falls within an exemption to
disclosure authorized by OPRA, we need not reach NJMG's remaining
arguments.
II.
The trial judge's determination that plaintiff's OPRA request
was properly denied and the legal conclusion regarding the
appropriate exemption are both legal issues subject to de novo
3
Advance Publications, Inc., American Society of News Editors,
The Asbury Park Press, The Associated Press, Association of
Alternative Newsmedia, The Center for Investigative Reporting,
Courier News, Courier Post, The Daily Journal, Daily Record, Dow
Jones & Company, Inc., Home News Tribune, Investigative Reporters
and Editors, Investigative Reporting Workshop at American
University, National Newspaper Association, The National Press
Club, National Press Photographers Association, New Jersey Press
Association, The New York Times Company, News Corp, The Newspaper
Guild – CWA, NYP Holdings, Inc., Online News Association, Time
Inc., and Tully Center for Free Speech.
10
A-2393-13T3
review. N. Jersey Media Group, Inc. v. Twp. of Lyndhurst, 441
N.J. Super. 70, 89-90 (App. Div. 2015); K.L. v. Evesham Twp. Bd.
of Educ., 423 N.J. Super. 337, 349 (App. Div. 2011), certif.
denied, 210 N.J. 108 (2012). Our review of the determination
regarding the common law right of access is de novo as well.
Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421
N.J. Super. 489, 497 (App. Div. 2011). We note further, "appeals
are taken from orders and judgments and not from opinions, oral
decisions, informal written decisions, or reasons given for the
ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001). Thus, although we reach the same conclusion as
the trial court, we do so for different reasons.
A.
The Legislature's stated purpose in enacting OPRA was to make
government records "readily accessible" to the public "with
certain exceptions, for the protection of the public interest."
N.J.S.A. 47:1A-1. OPRA directs that "all government records shall
be subject to public access unless exempt," and that "any
limitations on the right of access . . . shall be construed in
favor of the public's right of access." Ibid. The goal of such
ready access is to promote good government. "With broad public
access to information about how state and local governments
operate, citizens and the media can play a watchful role in curbing
11
A-2393-13T3
wasteful government spending and guarding against corruption and
misconduct." Burnett, supra, 198 N.J. at 414. The public's right
to disclosure is not, however, absolute. Kovalcik v. Somerset
Cnty. Prosecutor's Office, 206 N.J. 581, 588 (2011); Educ. Law
Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284 (2009).
OPRA provides that, upon receipt of a written request for
access, the custodian "shall grant access to a government record
or deny a request for access to a government record." N.J.S.A.
47:1A-5(i). N.J.S.A. 47:1A-5(g) sets forth the custodian's
obligations upon receipt of an OPRA request. The custodian must
"promptly comply with a request" and, if "unable to comply . . .
shall indicate the specific basis therefor on the request form and
promptly return it to the requestor." Ibid.; see also Gannett
N.J. Partners, LP v. Cnty. of Middlesex, 379 N.J. Super. 205, 215
(App. Div. 2005). A public agency that denies access bears "the
burden of proving that the denial of access is authorized by law."
N.J.S.A. 47:1A-6. The custodian may not rely upon "conclusory and
generalized allegations of exemptions," but must provide specific
reasons for withholding documents. Newark Morning Ledger Co. v.
N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 162 (App.
Div. 2011) (quoting Loigman, supra, 102 N.J. at 110).
12
A-2393-13T3
B.
From the outset, BCPO declined to confirm or deny the
existence of responsive records and set forth its rationale for
maintaining the confidentiality of information relating to "an
individual who has neither been charged nor arrested . . . or has
been[] the subject of an investigation." NJMG has characterized
this as a "novel basis for denial." However, BCPO's response
conforms to Standard 1.5(a), Contacts with the Public During the
Investigative Process, of the ABA Standards on Prosecutorial
Investigations, which states that, with limited, enumerated
exceptions, "[t]he prosecutor should neither confirm nor deny the
existence of an investigation, or reveal the status of the
investigation, nor release information concerning the
investigation." ABA Standards for Criminal Justice: Prosecutorial
Investigations § 1.5(a) (3d ed. 2014).
This noncommittal response has come to be known as a Glomar
response and had its origin in Phillippi v. CIA, 546 F.2d 1009
(D.C. Cir. 1976). The Central Intelligence Agency (CIA) responded
to a FOIA request for records pertaining to the Hughes Glomar
Explorer, an oceanic vessel publicly listed as a privately owned
research ship that was allegedly owned by the federal government.
Id. at 1011. The CIA asserted, "in the interest of national
security, involvement by the U.S. Government in the activities
13
A-2393-13T3
which are the subject matter of [the plaintiff's] request can
neither be confirmed nor denied," claiming that the "existence or
nonexistence of the requested records was itself a classified fact
exempt from disclosure under . . . FOIA." Id. at 1012. The
precise issue we face here – whether the public agency may decline
to confirm or deny the existence of records – was not decided by
the Phillippi court because the requestor in that case did not
contend the government could never make such a claim based on
national security considerations. Ibid.
However, by 2009, when the Court of Appeals for the Second
Circuit announced it was joining its sister circuits in holding
the Glomar doctrine available to agencies responding to FOIA
requests, the court noted the doctrine was "well settled as a
proper response to a FOIA request." Wilner v. NSA, 592 F.3d 60,
68 (2d Cir. 2009), cert. denied, 562 U.S. 828, 131 S. Ct. 387, 178
L. Ed. 2d 24 (2010). The court recognized the Glomar response as
"the only way in which an agency may assert that a particular FOIA
statutory exemption covers the 'existence or nonexistence of the
requested records' in a case in which a plaintiff seeks such
records." Ibid. (citation omitted).
The court emphasized that the availability of the Glomar
response depended upon a showing that the conventional response
to a FOIA inquiry "would cause harm cognizable under a [] FOIA
14
A-2393-13T3
exception." Ibid. (alteration in original) (quoting Gardels v.
CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).
To properly employ the Glomar response to a
FOIA request, an agency must "tether" its
refusal to respond to one of the nine FOIA
exemptions — in other words, "a government
agency may . . . refuse to confirm or deny the
existence of certain records . . . if the FOIA
exemption would itself preclude the
acknowledgment of such documents."
[Wilner, supra, 592 F.3d at 68 (emphasis
added) (first citation omitted) (quoting
Minier, supra, 88 F.3d at 800).]
Because the "existence or nonexistence of a record" must be "a
fact exempt from disclosure under" the exception relied upon, a
Glomar response is unavailable if "the existence or nonexistence
of the particular records covered . . . has been officially and
publicly disclosed." Wilner, supra, 592 F.3d at 70.
As is the case when an agency denies access under OPRA, see
N.J.S.A. 47:1A-6, the agency that relies upon a Glomar response
must prove the applicability of a specific exemption. Wilner,
supra, 592 F.3d at 68; Pipko v. CIA, 312 F. Supp. 2d 669, 679
(D.N.J. 2003). The agency may satisfy this burden by submitting
an affidavit that "describe[s] the justifications for
nondisclosure with reasonably specific detail, demonstrate[s] that
the information withheld logically falls within the claimed
exemptions, and show[s] that the justifications are not
15
A-2393-13T3
controverted by contrary evidence in the record or by evidence of
[] bad faith." Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992).
An example of the judicial analysis required to determine
whether a Glomar response is appropriate is found in People for
the Ethical Treatment of Animals v. National Institutes of Health,
745 F.3d 535 (D.C. Cir. 2014). A number of FOIA requests were
made to the National Institutes of Health (NIH) regarding
investigations of animal abuse at a university research lab. Id.
at 538. One of these requests was for "materials related to all
[NIH] investigations into complaints . . . regarding" three named
researchers at the lab. Id. at 539. The exemption at issue was
5 U.S.C.A. § 552(b)(7)(C) (Exemption 7(C)), which, the court
stated, supports such a response for "'records or information
compiled for law enforcement purposes' . . . . if acknowledgment
of responsive documents 'could reasonably be expected to
constitute an unwarranted invasion of personal privacy.'" Id. at
541 (citation omitted). Noting the "substantial privacy interest
held by the targets of law-enforcement investigations," ibid.
(citation omitted), the court found a Glomar response appropriate
"as to any documents that would confirm the existence of an
investigation into the three named researchers." Id. at 544.
However, the court viewed the FOIA request to be more
expansive, requiring consideration of whether a Glomar response
16
A-2393-13T3
was available for another category of responsive documents
subsumed within the request. The court concluded a Glomar response
would not be justified under Exemption 7(C) for "documents showing
that NIH responded to complaints about the three researchers by
conducting an investigation that did not target the researchers
themselves." Id. at 544. As to that category of documents, the
purpose served by Exemption 7(C) was not defeated by an admission
that responsive documents existed and so, the availability of the
Glomar response was tailored accordingly. See also Nation Magazine
v. U.S. Customs Serv., 71 F.3d 885, 887-88 (D.C. Cir. 1995) (in
reviewing FOIA request for records relating to offers made by H.
Ross Perot to assist the Customs Service in drug interdiction
efforts, the court rejected the agency's claim that Exemption 7(C)
permitted a Glomar response to all requests for information
regarding third persons in its investigative files).
C.
Consequently, we must determine whether the refusal to
confirm or deny the existence of responsive records is an available
response to an OPRA request. NJMG asserts that a refusal to
confirm or deny the existence of responsive records is not
permitted under OPRA. In NJMG's view, OPRA strictly limits the
response an agency may make to a request for records, imposing an
obligation to identify responsive records in every case as a
17
A-2393-13T3
prerequisite to identifying the exemption relied upon. Like FOIA,
there is no language in OPRA that explicitly permits an agency to
decline to confirm or deny the existence of responsive records.4
Although we note the absence of specific statutory authorization
posed no obstacle to the adoption of the Glomar doctrine in either
federal caselaw or in New York, see Matter of Abdur-Rashid v. New
York City Police Dep't, 140 A.D.3d 419 (N.Y. App. Div. 2016), our
concern is whether this response is permitted under OPRA.
Our role in interpreting a statute is to discern and give
effect to the Legislature's intent. DiProspero v. Penn, 183 N.J.
477, 492 (2005). The plain language of the statute is "the best
indicator" of legislative intent. In re Plan for the Abolition
of the Council on Affordable Hous., 214 N.J. 444, 467 (2013). "If
the plain language leads to a clear and unambiguous result, then
[the] interpretive process is over." Richardson v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007). When "a
literal interpretation would create a manifestly absurd result,
contrary to public policy," or "would lead to results inconsistent
with the overall purpose of the statute," such interpretations
4
Our research has revealed one statute that expressly permits
such a response. Indiana's Access to Public Records Act permits
a state agency to "[r]efuse to confirm or deny the existence of
the record" under certain circumstances if the agency considers
the request to be for a record excepted from disclosure. Ind.
Code Ann. § 5-14-3-4.4(a)(2).
18
A-2393-13T3
should be rejected in favor of the spirit of the law. Hubbard v.
Reed, 168 N.J. 387, 392-93 (2001) (citation omitted); Turner v.
First Union Nat'l Bank, 162 N.J. 75, 84 (1999). When the language
does not yield an unambiguous interpretation, we continue the
process to discern legislative intent, interpreting statutory
language "in accordance with common sense" and may "consider the
entire legislative scheme of which a particular provision is but
a part." Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380
(2015). We may also turn to extrinsic evidence, "including
legislative history, committee reports, and contemporaneous
construction." DiProspero, supra, 183 N.J. at 492-93 (citation
omitted); see also Burnett, supra, 198 N.J. at 421. There are
many tools available for our analysis, but only one goal.
"Regardless of the materials relied upon and the analytical tools
employed, in the final analysis, courts should seek to effectuate
the fundamental purpose for which the legislation was enacted."
In re Young, 202 N.J. 50, 64 (2010) (citation omitted).
As we have noted, the obligation imposed upon the custodian
of public records is to "promptly comply with a request" or, if
"unable to comply," to "indicate the specific basis therefor on
the request form and promptly return it to the requestor."
N.J.S.A. 47:1A-5(g); see also Gannett N.J. Partners, supra, 379
N.J. Super. at 215. Other than providing a "specific basis" for
19
A-2393-13T3
the inability to comply, the statute establishes no inflexible
requirements for a non-compliance response. Whether an agency
denies access to identified records or declines to confirm or deny
responsive records exist, its reply falls within the category of
"unable to comply" and is subject to review under that standard.
Therefore, we discern no impediment to the availability of a Glomar
response under OPRA's plain language.
We also reject the interpretation urged by NJMG that the
submission of a Vaughn index is required in all cases in which the
agency does not comply with a request. Neither OPRA nor FOIA
calls for the production of a Vaughn index in every case in which
access is denied. Although the use of such a log has become
customary, courts that have considered this issue have cautioned
that the production and review of a Vaughn index is not appropriate
in every case. Federal courts have ruled that, when an agency
submits a Glomar response supported by an affidavit that is
"sufficient to establish that the requested documents should not
be disclosed, a Vaughn index is not required." Minier, supra, 88
F.3d at 804. The rationale is that "acknowledging even the
existence of certain records would reveal information entitled to
be protected." N.Y. Times Co., supra, 758 F.3d at 438 n.3.
By way of example, in Wilner, supra, 592 F.3d 60, the question
was whether the National Security Agency's Glomar response was
20
A-2393-13T3
properly rooted in 5 U.S.C.A. § 552(b)(3) (Exemption 3), an
exemption that states FOIA does not apply to matters exempted from
disclosure by other statutes under specified conditions.5 The
court found a Vaughn index was unnecessary because this exemption
"depends less on the detailed factual contents of specific
documents" and thus "the sole issue for decision [was] the
existence of a relevant statute and the inclusion of withheld
material within the statute's coverage." Wilner, supra, 592 F.3d
at 72 (quoting Ass'n of Retired R.R. Workers v. U.S. R.R. Ret.
Bd., 830 F.2d 331, 336 (D.C. Cir. 1987)); see also Vaughn, supra,
484 F.2d at 826-27 (acknowledging that the specificity of the
index need not "contain factual descriptions that if made public
would compromise the secret nature of the information"); ACLU v.
FBI, 59 F. Supp. 3d 584, 594 (S.D.N.Y. 2014); Pipko, supra, 312
F. Supp. 2d at 680.
D.
We next turn to NJMG's argument that the only available
exemptions to disclosure are those enumerated as protected
categories within the four corners of OPRA. NJMG's argument is
belied by the very statutory provisions it cites for support.
5
Exemption 3 is similar to N.J.S.A. 47:1A-9(b). However, because
the OPRA provision recognizes privileges established by judicial
decision and other means, it is broader in scope than Exemption
3.
21
A-2393-13T3
N.J.S.A. 47:1A-1 explicitly recognizes that records may be
exempt from public access based upon authorities other than the
exemptions enumerated within OPRA:
[A]ll government records shall be subject to
public access unless exempt from such access
by: [OPRA] as amended and supplemented; any
other statute; resolution of either or both
houses of the Legislature; regulation
promulgated under the authority of any statute
or Executive Order of the Governor; Executive
Order of the Governor; Rules of Court; any
federal law, federal regulation, or federal
order.
[(Emphasis added).]
Moreover, N.J.S.A. 47:1A-9 codifies the Legislature's
unambiguous intent that OPRA not abrogate or erode existing
exemptions to public access:
a. The provisions of [OPRA] shall not abrogate
any exemption of a public record or government
record from public access heretofore made
pursuant to [the Right-to-Know Law, N.J.S.A.
47:1A-1 to -4]; any other statute; resolution
of either or both Houses of the Legislature;
regulation promulgated under the authority of
any statute or Executive Order of the
Governor; Executive Order of the Governor;
Rules of Court; any federal law; federal
regulation; or federal order.
b. The provisions of [OPRA] shall not abrogate
or erode any executive or legislative
privilege or grant of confidentiality
heretofore established or recognized by the
Constitution of this State, statute, court
rule or judicial case law, which privilege or
grant of confidentiality may duly be claimed
to restrict public access to a public record
or government record.
22
A-2393-13T3
[(Emphasis added).]
Directly applying OPRA's language, the Supreme Court
recognized exemptions for documents protected by the attorney-
client privilege and the work-product doctrine. O'Boyle v. Borough
of Longport, 218 N.J. 168, 185 (2014). See also Mason v. City of
Hoboken, 196 N.J. 51, 65 (2008); Slaughter v. Gov't Records
Council, 413 N.J. Super. 544, 550 (App. Div. 2010) (stating it was
"clear that an exemption from a right of public access to a
government record can be established" by both administrative rule
and by an executive order of the Governor), certif. denied, 208
N.J. 372 (2011).
Therefore, the plain language of the statute as well as
judicial precedent make it clear that an exemption is statutorily
recognized by OPRA if it is established by any of the authorities
enumerated in N.J.S.A. 47:1A-1 or -9.
N.J.S.A. 47:1A-9(b) has three requirements for a grant of
confidentiality to shield a record from disclosure under OPRA.
First, there must be a grant of confidentiality established or
recognized by any of the enumerated authorities. Second, the
nature of the privilege must provide a reasonable basis for the
restriction of public access to the record. Third, the privilege
must have been established or recognized prior to the enactment
of OPRA. All three requirements are met as to the confidentiality
23
A-2393-13T3
of information regarding a person who has not been arrested or
charged with an offense.
Long before the enactment of OPRA, the confidentiality of
information law enforcement authorities receive regarding possible
criminal activity was recognized in our caselaw.
The receipt by appropriate law enforcement
officials of information concerning the
existence or occurrence of criminal activities
is critical to the uncovering and the
prosecution of criminal offenses, and is thus
crucial to effective law enforcement. In order
that the flow of such information be not
impeded or cut off, the law has long treated
the information as confidential and privileged
against disclosure, thereby protecting
witness security, the State's relationship
with its informants and witnesses, and other
confidential relationships, among other
things.
[State v. Marshall, 148 N.J. 89, 273 (1997)
(emphasis added) (citation omitted).]
"Confidentiality is vital not only because it serves to
protect government sources of information, but also because it
enhances the effectiveness of investigative techniques and
procedures." Nero v. Hyland, 76 N.J. 213, 225 (1978). "[E]ven
inactive investigatory files may have to be kept confidential in
order to convince citizens that they may safely confide in law
enforcement officials." Ibid. (citation omitted). See also
Loigman, supra, 102 N.J. at 107-08 (recognizing "a high degree of
confidentiality" in investigative materials relating to "the
24
A-2393-13T3
government's need to conduct such affairs with skill, with
sensitivity to the privacy interests involved, and in an atmosphere
of confidentiality that encourages the utmost candor"); State v.
Kearney, 109 N.J. Super. 502, 506 (Law Div. 1970).
In sum, before OPRA was enacted, judicial decisions
recognized the need to maintain "a high degree of confidentiality"
for records regarding a person who has not been arrested or
charged. The confidentiality accorded such information promotes
both the integrity and effectiveness of law enforcement efforts
for the benefit of the public at large. In addition, the grant
of confidentiality protects the privacy interest of the individual
who, lacking an opportunity to challenge allegations in court,
would face irremediable public condemnation. The need and scope
of confidentiality recognized in our courts' decisions "may duly
be claimed to restrict public access to a public record or
government record." N.J.S.A. 47:1A-9(b). We therefore hold that,
pursuant to N.J.S.A. 47:1A-9(b), an exemption exists for
information received or maintained by law enforcement agencies
regarding a person who has not been arrested or charged with an
offense.
E.
BCPO did not specifically identify N.J.S.A. 47:1A-9(b) as the
source of the exemption that shields the records sought here. We
25
A-2393-13T3
therefore turn to the question whether BCPO's response
"describe[d] the justifications for nondisclosure with reasonably
specific detail, demonstrat[ing] that the information withheld
logically falls within" the exemption. See Hunt, supra, 981 F.2d
at 1119.
OPRA requires the custodian of records to "indicate the
specific basis" for an inability to comply with an OPRA request.
N.J.S.A. 47:1A-5(g). An agency denying access should identify
applicable statutory provisions to facilitate judicial review.
However, the mere recitation of an applicable exemption will
generally be insufficient because the custodian may not rely upon
"conclusory and generalized allegations of exemptions." Newark
Morning Ledger, supra, 423 N.J. Super. at 162 (citation omitted).
The sufficiency of the response is measured against whether the
proffered reasons prove the applicability of a specific exemption.
See Wilner, supra, 592 F.3d at 68.
In this case, we are mindful that the person whose privacy
would be irreparably invaded had no opportunity to press the case
against disclosure. See Gannett N.J. Partners, supra, 379 N.J.
Super. at 214-15. We also note that, although the concept of
protecting such information is long-standing and the response
given here conforms to accepted standards of prosecutorial ethics,
the precise issue of what exemption applies to protect this
26
A-2393-13T3
information has not been addressed before. Therefore, under the
circumstances of this case, we consider the totality of BCPO's
response to discern whether the reasons given for its refusal to
confirm or deny the existence of responsive records logically fall
within the exemption authorized by N.J.S.A. 47:1A-9(b).6
Aside from N.J.S.A. 47:1A-3(b), BCPO did not explicitly
identify other exemptions contained within OPRA that supported its
rationale for declining to confirm or deny the existence of records
here. The certification submitted in opposition to NJMG's
complaint stated the "privileges and exemptions" available to bar
access included "criminal investigatory records, confidential,
[and] privacy." In addition, the certification cited the
constraints imposed upon a prosecutor by the Rules of Professional
Conduct.
In its initial response to NJMG's OPRA request, BCPO
identified the request as seeking records "related to someone who
has neither been arrested nor charged with committing an offense,"
amounting to an inquiry whether the person "is, or has been, the
subject of an investigation." The response stated BCPO would
6
It remains the burden of the custodian to show that the denial
of access is properly grounded in an exemption authorized by OPRA.
We do not intend that our review of exemptions not explicitly
identified by BCPO should in any way relieve a custodian of public
records from that burden or impose an obligation upon courts to
sift through OPRA to determine if an appropriate exemption exists
based upon the facts revealed.
27
A-2393-13T3
"neither confirm nor deny whether an individual who has neither
been charged nor arrested is, or has been, the subject of an
investigation," and explained:
Law enforcement agencies routinely receive
allegations that are determined to be
unprovable, unfounded or untrue. Identifying
the target of such allegations could unfairly
subject that individual to irreparable harm
and subject this office and its employees to
civil liability and professional discipline.
BCPO's response identified the irreparable harm suffered by
a person who has been the subject of unproven allegations of
criminal wrongdoing. We are satisfied that, under the
circumstances here, the reasons BCPO provided for declining to
confirm or deny the existence of responsive records adequately
invoke and logically fall within the relevant exemption.
F.
BCPO's response fairly implicated the general privacy
provision, N.J.S.A. 47:1A-1, the criminal investigatory record
exemption, N.J.S.A. 47:1A-1.1, and the investigation in process
exemption, N.J.S.A. 47:1A-3. For the sake of completeness, we
review these exemptions to explain why they do not provide a basis
for the exemption we recognize under N.J.S.A. 47:1A-9(b).
We begin with the threshold requirement for a Glomar response.
For an exemption to serve as a basis for a Glomar response, the
28
A-2393-13T3
exemption itself must preclude the acknowledgment that responsive
documents exist. See Wilner, supra, 592 F.3d at 68.
A "criminal investigatory record" is defined as "a record
which is not required by law to be made, maintained or kept on
file that is held by a law enforcement agency which pertains to
any criminal investigation or related civil enforcement
proceeding." N.J.S.A. 47:1A-1.1. The agency relying upon this
exemption must present sufficient facts to show: (1) the existence
of a criminal investigation or related proceeding and (2) that the
responsive records "pertain" to that proceeding. Therefore, the
agency that seeks to prove the applicability of this exemption
must, as a preliminary step, acknowledge that responsive records
exist.
The "investigation in process" exemption, N.J.S.A. 47:1A-3,
shields records that "pertain to an investigation in progress by
any public agency" if such access is "inimical to the public
interest." See, e.g., Courier News v. Hunterdon Cnty. Prosecutor's
Office, 358 N.J. Super. 373, 380 n.5 (App. Div. 2003) (rejecting
claim that access to a 911 tape one year after a homicide fell
within the "investigation in progress" exemption). This provision
also depends upon proof that a criminal investigation exists.
The proofs necessary for the "criminal investigatory records"
and "investigation in progress" exemptions cannot be reconciled
29
A-2393-13T3
with the fact that the "existence or nonexistence of a record"
must be "a fact exempt from disclosure under" an exemption relied
upon for a Glomar response. Therefore, neither exemption provides
a statutorily recognized authority for a Glomar response.
BCPO also relies upon RPC 3.8(f), which states:
[E]xcept for statements that are necessary to
inform the public of the nature and extent of
the prosecutor’s action and that serve a
legitimate law enforcement purpose, [a
prosecutor shall] refrain from making
extrajudicial comments that have a substantial
likelihood of heightening public condemnation
of the accused . . . .
This proscription has the force of court rule pursuant to
Rule 1:14. However, the RPC fails to satisfy the other criteria
for the exemption. A prohibition against making extrajudicial
comments that could prejudice an accused is designed to curb
prosecutorial misconduct. Because the RPC does not reference
records or, more particularly, records relating to an uncharged
suspect, it cannot be said to establish or recognize the
confidentiality of public records maintained by the prosecutor as
to persons who have never been charged with an offense. Moreover,
the RPC did not become effective until 2004, after the enactment
of OPRA. Therefore, it cannot provide a basis for an exemption
under N.J.S.A. 47:1A-9(b).
BCPO also cited both the constitutional guarantee of privacy,
N.J. Const. art. I, ¶ 1; see Doe, supra, 142 N.J. at 89, and the
30
A-2393-13T3
privacy provision of OPRA, N.J.S.A. 47:1A-1, as grounds for the
denial of access. In light of our conclusion that access may be
denied based upon the exemption contained in N.J.S.A. 47:1A-9(b),
resolution of the constitutional question is not "absolutely
imperative in the disposition of the litigation" and "should not
be reached." Burnett, supra, 198 N.J. at 420.
The general privacy provision contained in N.J.S.A. 47:1A-1
states "a public agency has a responsibility and an obligation to
safeguard from public access a citizen's personal information with
which it has been entrusted when disclosure thereof would violate
the citizen's reasonable expectation of privacy." See Burnett,
supra, 198 N.J. at 422-23 (emphasis added) (recognizing this
privacy clause as a substantive provision of OPRA). Although
"personal information" is not defined, OPRA does identify specific
categories of information that either should not be disclosed or
should be redacted from records that are disclosed. See, e.g.,
N.J.S.A. 47:1A-5(a) (requiring the redaction of "any information
which discloses the social security number, credit card number,
unlisted telephone number, or driver license number of any
person"). The privacy provision has been found to require denial
of access to social security numbers, Burnett, supra, 198 N.J. at
428, and the names and telephone numbers of persons called from
government-issued telephones. Livecchia v. Borough of Mount
31
A-2393-13T3
Arlington, 421 N.J. Super. 24, 29 (App. Div. 2011). It is not
applicable to the settlement of a sexual harassment and
discrimination lawsuit against a county, Asbury Park Press v.
Cnty. of Monmouth, 201 N.J. 5, 6 (2010); motor vehicle recordings
from mobile video recorders in police vehicles, Paff v. Ocean
Cnty. Prosecutor's Office, ___ N.J. Super. ____, ____ (App. Div.
June 30, 2016) (slip op. at 39-41); and the destination locations
of calls placed from government-issued telephones, Livecchia,
supra, 421 N.J. Super. at 29.
It is unnecessary for us to determine the full scope of the
privacy provision. However, in considering whether this provision
satisfied the requirement for exemption here pursuant to N.J.S.A.
47:1A-9(b), we discern a common thread in these privacy provision
cases: the protected information is personal in the sense that it
provides identifying information about a person that originates
with the individual and is "entrusted" to the government. We
therefore conclude that the basis for withholding the records
sought here does not logically fall within this exemption.
G.
We have considered the argument of amici that the application
of the Glomar doctrine in federal courts has undermined the
overarching goal of ready public access by obstructing judicial
scrutiny. Our review of federal caselaw reveals that any
32
A-2393-13T3
infringement upon the scope of judicial review is attributable to
clearly articulated congressional intent rather than inherent
flaws in the doctrine itself.
When evaluating a Glomar response, federal courts must
"accord 'substantial weight' to the agency's affidavits." Wilner,
supra, 592 F.3d at 68 (alterations in original) (quoting Minier,
supra, 88 F.3d at 800). This standard of deference has its origin
in the 1974 amendments to 5 U.S.C.A. § 552(b)(1) which, Congress
made clear, were intended to override the Supreme Court's holding
in Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S. Ct.
827, 35 L. Ed. 2d 119 (1973), regarding the in camera review of
classified documents. Congress overrode President Ford's veto of
the 1974 amendments to FOIA to do so. Military Audit Project v.
Casey, 656 F.2d 724, 738 n.47 (D.C. Cir. 1981). The Senate report
states:
[T]he Executive departments responsible for
national defense and foreign policy matters
have unique insights into what adverse affects
[sic] might occur as a result of public
disclosure of a particular classified record.
Accordingly, the conferees expect that Federal
courts, in making de novo determinations in
section 552(b)(1) cases under the Freedom of
Information law, will accord substantial
weight to an agency's affidavit concerning the
details of the classified status of the
disputed record.
[S.Rep.No. 93-1200 (1974), as reprinted in,
1974 U.S.C.C.A.N. 6285, 6290 (emphasis
added).]
33
A-2393-13T3
Because no corresponding limitation upon judicial review exists
in OPRA or is suggested by the legislative history, our review of
Glomar responses will not be burdened by such a directive.
III.
Finally, we turn to NJMG's argument that the denial of access
here violated its common law right to access. OPRA explicitly
does not "limit[] the common law right of access to a government
record, including criminal investigatory records of a law
enforcement agency." N.J.S.A. 47:1A-8; see also N.J.S.A. 47:1A-
1. The definition of a public record under the common law 7 is
broader than that contained in OPRA. Bergen Cnty. Improvement
Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 509-10
(App. Div.), certif. denied, 182 N.J. 143 (2004). However, the
right to access common law records is a qualified one, Newark
Morning Ledger, supra, 423 N.J. Super. at 171, and the showing a
requestor must make to gain access is greater than that required
under OPRA. Mason, supra, 196 N.J. at 67-68.
In Keddie, the Supreme Court identified three predicates for
the common law right to access public records: "(1) the records
7
Under common law, a government record "is one that is made by
a public official in the exercise of his or her public function,
either because the record was required or directed by law to be
made or kept, or because it was filed in a public office." Keddie
v. Rutgers, 148 N.J. 36, 49 (1997).
34
A-2393-13T3
must be common law public documents; (2) the person seeking access
must 'establish an interest in the subject matter of the material';
and (3) the citizen's right to access 'must be balanced against
the State's interest in preventing disclosure.'" 148 N.J. at 50
(citations omitted).
The trial court here found the first two Keddie requirements
satisfied, a conclusion BCPO does not challenge on appeal. NJMG's
primary challenge to the trial court's analysis is that, because
BCPO declined to confirm or deny the existence of responsive
records, there was no factual record to support the trial judge's
conclusions. We disagree.
After making the determinations required by Keddie, "a court
must balance the plaintiff's interest in the information against
the public interest in confidentiality of the documents, including
a consideration of whether the 'demand for inspection is premised
upon a purpose [that] tends to advance or further a wholesome
public interest or a legitimate private interest.'" S. N.J.
Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995)
(alteration in original) (citation omitted). The balancing
required calls for consideration of:
(1) the extent to which disclosure will impede
agency functions by discouraging citizens from
providing information to the government; (2)
the effect disclosure may have upon persons
who have given such information, and whether
they did so in reliance that their identities
35
A-2393-13T3
would not be disclosed; (3) the extent to
which agency self-evaluation, program
improvement, or other decision making will be
chilled by disclosure; (4) the degree to which
the information sought includes factual data
as opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether any
agency disciplinary or investigatory
proceedings have arisen that may circumscribe
the individual's asserted need for the
materials.
[Loigman, supra, 102 N.J. at 113.]
These factors are largely irrelevant here. The nature of the
records sought and the response given by BCPO call for flexibility
in the balancing process employed. See Atl. City Convention Ctr.
Auth. v. S. Jersey Publ. Co., 135 N.J. 53, 60 (1994) (citation
omitted) (noting the balancing process is "flexible and adaptable
to different circumstances and sensitive to the fact that the
requirements of confidentiality are greater in some situations
than in others").
NJMG's argument that the record is insufficient because BCPO
has not certified to facts that would warrant non-disclosure
ignores the context its OPRA request gave to the analysis. "In
furtherance of the newsgathering process," NJMG sought reports
"filed against or involving" A.B.C., "complaints . . . made to law
enforcement officials concerning" A.B.C., and "[r]ecordings . . .
of 911 calls . . . related to" A.B.C. The unmistakable import of
36
A-2393-13T3
the request was to seek records regarding criminal allegations
against A.B.C. BCPO's refusal to confirm or deny the existence
of such records directly responded to that request, noting the
request was one for records relating to a person who was not
arrested or charged with an offense. Such information has been
long acknowledged to enjoy a high degree of confidentiality.
It is obvious that, in order to protect the confidentiality
of persons who have been the subject of investigation but not
charged with any offense, the prosecutor must respond to requests
for such records uniformly. To deny records exist in some cases
and to issue no denial in others would implicitly confirm the
existence of records in a particular case, entirely defeating any
effort to protect the confidentiality interest at stake. See
Daily Journal v. Police Dept. of City of Vineland, 351 N.J. Super.
110, 128-29 (App. Div.) (citation omitted) (stating disclosure of
the names of individuals mentioned in grand jury presentment would
be "tantamount to an accusation" without "furnish[ing a] forum for
a denial," depriving the individual of "the right to answer and
to appeal"), certif. denied, 174 N.J. 364 (2002). The record here
was sufficient to identify the issue joined by the request and the
response and permit a determination as to whether access was
required by the common law.
37
A-2393-13T3
Where "reasons for maintaining a high degree of
confidentiality in the public records are present, even when the
citizen asserts a public interest in the information, more than
[the] citizen's status and good faith are necessary to call for
production of the documents." Loigman, supra, 102 N.J. at 105-
06. That high degree of confidentiality applies here. After
considering the arguments advanced by NJMG, we conclude the common
law right of access did not require BCPO to disclose whether or
not records responsive to its request existed.
Affirmed.
38
A-2393-13T3