Government agencies in New Jersey can deny access to public records by neither confirming nor denying the records exist. That’s what an appeals court ruled in a case that’s likely to go to the state Supreme Court. Here to talk about it with NJTV Correspondent Michael Hill is Bruce Rosen, partner in McCusker, Anselmi, Rosen & Carvelli and the outside counsel for NJTV.
Hill: The facts here are a reporter was asking for records, 911 transcript, 911 recording and others of a 911 call to authorities in Bergen County of a priest who hadn’t been charged with anything or convicted of a crime. What’s your reaction to this ruling?
Rosen: To me it’s an unnecessary narrowing of OPRA [Open Public Records Act], which provides for a presumption of access. It also creates an exemption that did not exist before. As a matter of fact it creates an exemption out of whole cloth, I believe, that you wouldn’t see this exemption anywhere else in the United States at a state public access law except in Indiana, and the court itself mentions that. It’s really a bad omen that it comes from the appellate division that has been openly antagonistic toward OPRA over the past year.
Hill: I want to talk to you more about that, but first the prosecutor’s office in this case, Bergen County, argue that look, here’s someone who we know if the person is innocent or guilty, there’s a presumption of innocence in this particular case. If you release this information and this person hasn’t been charged with a crime and eventually this person could be innocent and proven not guilty at trial then you’ve damaged this person’s reputation.
Rosen: That’s a fallacy to me because the person’s not being charged, not being charged as an unindicted co-coinspirator. It’s just someone that was a subject of a look-see by the prosecutor’s office that for some reason there’s some information there. What the court said in cases like that we’re going to create an exemption so that their privacy is protected. What the court essentially said is we’re going right to the balancing test and if privacy is a big issue, we’re going to say that you can balance your privacy in the favor of the individual. It cuts off all sorts of access to all sorts of important information and it really runs against the reasons why OPRA exists and it undermines OPRA. Someone needs to correct this. I hope it’s the state Supreme Court, but it might have to be the Legislature and that actually might have to wait until after Gov. Christie is out of office.
Hill: Will more government agencies use this precedent as a reason to deny access to public records, to deny access to transparency?
Rosen: It will be mostly investigative agencies and police that will have to meet the criteria set out in this appellate division decision, assuming it’s not reversed by the Supreme Court.
Hill: What’s the criteria?
Rosen: So the criteria is that the agency has to say that there is an exemption that covers this and the court has to be able to look at that exemption and determine if it really exists and this particular case the exemption wasn’t clear cut and the court sort of created one by pulling in all of this various law and looking for references in what’s called dicta, which is parts of cases that don’t go to the holding. They are basically pulling in all this different language from all over and creating a new exemption.
Hill: But you’re saying, in your practice thought, is that this appeals court in this particular state, this is not new. You’ve seen a trend in other rulings going towards something like this?
Rosen: In the last year, since July 2015 where there’s a Lyndhurst decision that was pretty serious that went against, what I thought, the weight of OPRA. There have been at least another five decisions including this one by various panels, it’s not by the same three judges and there’s many, many different panels in the appellate division, but they all seem antagonistic in some way or another to either OPRA or the idea of presumption of a release of information.
Hill: Are we seeing the same thing then in the Bridgegate case, quickly?
Rosen: Well, the Bridgegate case is somewhat similar in the sense that there are privacy issues, but the Bridgegate case is a more technical issue whether the list of unindicted co-coinspirators is a bill of particulars, in which case there’s a First Amendment right of access or not, that’s the case that seems to be the issue in front of the Third Circuit at this time.
Hill: How does this get reversed? How does this get changed? How do we get more access?
Rosen: Well, the Legislature had been looking at changes to OPRA and those changes seem to have died on the vine. The problem is that Gov. Christie’s administration has been antagonistic towards the release of a lot of information, including a lot of this Bridgegate information and there’s just an enormous backlog in the appellate division of these types of cases. And I know I have one about whether you can even, an OPRA, whether you can look at other people’s requests to the state and the trial court judge says yes, absolutely and that’s the way it’s done at the federal level and the appellate division, it’s been over a year and we don’t have a date for an argument. But the only way this is going to get fixed is if the Supreme Court goes back to the basics of OPRA and says wait, the definition of OPRA is everything is open unless it’s covered by these exemptions and we’re not going to make up exemptions.