The Supreme Court Discusses, for the First Time, Two Exceptions to the Open Public Records Act

Kovalcik v. Somerset County Prosecutor’s Office, 206 N.J. 581 (2011).  The Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), makes “government records,” as broadly defined in OPRA, generally accessible.  However, the right of access is not unlimited, and OPRA contains various exceptions to disclosure.  Among those exceptions are (1) “information which is to be kept confidential pursuant to court order,” N.J.S.A. 47:1A-1.1, and (2) subject to certain exceptions, “personnel or pension records of any individual in the possession of a public agency,” N.J.S.A. 47:1A-10.  Until the unanimous opinion in this case, written by Justice Hoens, the Supreme Court had never addressed either of these provisions of OPRA.

The case arose because plaintiff had been indicted for certain crimes, based in part on an investigation that had been conducted by two detectives from the defendant Prosecutor’s Office.  In pre-trial proceedings in that criminal case, plaintiff moved to compel the Prosecutor’s Office to produce to him the detectives’ curricula vitae and a list of any courses that the detectives had taken relating to interrogations and confessions.  That motion was denied.  Plaintiff then served an OPRA request on Somerset County for the same materials.  The Prosecutor’s Office responded that there were no responsive documents, but also that to the extent the request sought personnel records, those records were exempt from disclosure under the OPRA personnel records exemption.

Plaintiff then filed an order to show cause to compel release of the documents.  The Prosecutor’s Office again asserted that there were no responsive documents.  Later, however, the Prosecutor’s Office did locate some responsive documents, reflecting training courses and attendance certificates for one of the detectives.  Still, the Prosecutor’s Office asserted that the documents need not be produced because the order of the criminal division judge denying production was an order of confidentiality, and because the documents were protected personnel records.

The Law Division rejected the Prosecutor’s “order of confidentiality” argument but agreed with the “personnel records” analysis.  Plaintiff appealed.  The Appellate Division too rebuffed the “order of confidentiality” argument.  However, the panel reversed on the “personnel records” issue and ordered disclosure.  The Supreme Court granted the Prosecutor’s petition for certification.

Like the courts below, the Supreme Court rejected the notion that the order of the criminal judge denying disclosure was an “order of confidentiality.”  Justice Hoens observed that requests for discovery or disclosure are denied for all sorts or reasons, most having nothing to do with confidentiality.  Moreover, under the plain language of OPRA, “there is a difference between a decision to deny a motion to compel and one that would cloak the underlying material with the protections of confidentiality.”

The Prosecutor’s Office also contended that criminal defendants have no right to use OPRA.  The Court rejected that argument out of hand.  Nothing in OPRA permits the Court to limit OPRA rights “based on an evaluation of the requestor’s status.”  On the contrary, as Justice Hoens observed, “OPRA itself contains two separate exemptions which relate to documents in criminal matters,” thus indicating that the Legislature contemplated that criminal defendants could use OPRA.

On the “personnel records” issue, the Court held that the records of the detective’s coursework were personnel records that would be protected from disclosure unless an exception to the personnel records exemption applied.  One such exception is for information disclosing “specific experiential, educational or medical qualifications required for government employment.”  Justice Hoens emphasized the importance of the Legislature’s use of “specific” and “required” in this exception.  The parties had not focused on this exception or developed a record as to whether courses taken by the detective were “required” for employment.  The Court remanded this issue for further consideration.