American Civil Liberties Union of New Jersey v. New Jersey Div. of Criminal Justice, 435 N.J. Super. 533 (App. Div. 2014). Plaintiff ACLU filed an Open Public Records Act (“OPRA”) request with defendant Division of Criminal Justice. That request sought records “pertaining to all forms of Automatic License Plate Recognition (ALPR) technology.” The Division produced 79 pages of documents. But some of those pages contained redactions, including at least one document in which entire pages were blacked out. The Division redacted those documents because, in the Division’s view, the redacted information did not pertain to ALPR technology.
The ACLU brought an action to declare the Division’s redaction policy invalid under OPRA and the common law right of access. The Law Division ruled that the Division’s action was “an appropriate way to respond” and dismissed the case. The ACLU appealed, and the Appellate Division reversed in an opinion by Judge Fuentes that was issued this morning.
Judge Fuentes encapsulated the essence of the panel’s opinion in three sentences. “The redaction protocol adopted by the [Division] here cannot stand because it is not grounded on any of the statutorily recognized exemptions to disclosure in OPRA, N.J.S.A. 47:1A-1.1, or on a claim of confidentiality under the common law. Absent a legally recognized exception to disclosure, a citizen’s right of access to public information is unfettered. [Citation]. The redaction policy adopted by [the Division] is based entirely on the unilateral determination by the custodian of records of what, in his or her opinion, is relevant to the ACLU’s request.” There was no support for that policy in OPRA.
To make this point clear, Judge Fuentes quoted, and highlighted portions of, N.J.S.A. 47:1A-5(g). That section of OPRA states that “[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor.” That section also allows the custodian to “delete or excise” material that is exempt from public access under OPRA itself. Finally, N.J.S.A. 47:1A-5(g) says that if a request “would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.” Since these exceptions to disclosure were statedin OPRA, but redacting for relevance was not, the panel in essence concluded that expressio unius est exclusio alterius (the expression of one thing signifies the exclusion of others) applied, and redactions for relevance are not permitted by OPRA.
As a result of its ruling on OPRA, the panel did not reach any issue under the common law right of access. OPRA forbids redactions for relevance if a document is a record covered by OPRA and there is no basis in N.J.S.A. 47:1A-5(g) for excising the material.