Can an Agency Respond to an OPRA Request by Neither Confirming Nor Denying That Requested Documents Exist?

North Jersey Media Group, Inc. v. Bergen County Prosecutor’s Office, ___ N.J. Super. ___ (App. Div. 2016).  The answer to the question posed in the caption of this post is, according to Judge Espinosa’s opinion today, “yes,” but only “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.”

Today’s case involved a request to the defendant prosecutor’s office by the plaintiff news organization for records regarding a person who had not been charged with any crime.  The prosecutor’s office would not confirm or deny that such documents existed.  Plaintiff sued under OPRA and the common law right of access, the Law Division dismissed the case,and the Appellate Division today affirmed that result, under the de novo standard of review.

Normally, agency responses to OPRA requests are either to produce requested documents or refuse to produce some or all of them.  Though OPRA is silent about the question of whether an agency can neither confirm nor deny the existence of requested documents, Judge Espinosa did not write on a completely blank slate in this regard.  The federal Freedom of Information Act, 5 U.S.C. §552 (“FOIA”), has long permitted such a response, known in the federal system as a Glomar response.  That response takes its name from the name of a research vessel that was at issue in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 19976), which Judge Espinosa discussed in today’s opinion.  Glomar responses, she said, were labeled by the Second Circuit in a 2009 case as “well settled as a proper response to a FOIA request.”

The permissibility of Glomar responses under FOIA appeared to be very persuasive in today’s case, since OPRA and FOIA have comparable objectives.  Judge Espinosa reviewed the background and legislative intent of OPRA, and provided a comprehensive analysis of the issues.  OPRA requires agencies either to “promptly comply with a request” or, if “unable to comply,” to “indicate the specific basis therefor.”  Nothing in that language precluded a response that an agency cannot comply with a request because, for a demonstrable legal reason, the agency cannot reveal whether documents exist.  Moreover, relying on the absence of express authority to neither admit nor deny would have led “to results inconsistent with the overall purpose of the statute.”  There was thus “no impediment to the availability of a Glomar response under OPRA’s plain language.”

Plaintiff claimed that the only available exemptions from disclosure requirements are those contained “within the four corners of OPRA.”  But Judge Espinosa observed that OPRA itself defeated that argument.  She quoted both N.J.S.A. 47:1A-1 and -9 in ruling that “records may be exempt from public access based upon authorities other than the exemptions enumerated within OPRA.”  Judicial decisions holding that the attorney-client privilege and the work product doctrine can form a basis for non-disclosure buttressed her position.

Here, even before OPRA, courts had recognized “the confidentiality of information law enforcement authorities receive regarding possible criminal activity.”  The prosecutor’s office could properly rely on that doctrine, and the panel went on to hold that the prosecutor’s office had adequately invoked that principle, after analyzing the basis for the prosecutor’s office’s response and noting that some of the bases for that response were insufficient.

Finally, Judge Espinosa rebuffed plaintiff’s argument under the common law right of access.  Though that right is broader than those created by OPRA, it is still “a qualified one.”  Given the significant reasons for maintaining the confidentiality of the records at issue, the public interest did not require the prosecutor’s office to reveal whether the records existed.


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