N. Jersey Media Grp. Inc. v. Bergen Cnty. Prosecutor's Office

• Decision Date: 31 August 2016
• Citation: 447 N.J.Super. 182,146 A.3d 656
• Parties: North Jersey Media Group Inc., d/b/a Community News, Plaintiff-Appellant, v. Bergen County Prosecutor's Office and Frank Puccio, in his capacity as Custodian of Records for the Bergen County Prosecutor's Office, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

447 N.J.Super. 182

146 A.3d 656

North Jersey Media Group Inc., d/b/a Community News, Plaintiff-Appellant,

v.Bergen County Prosecutor's Office and Frank Puccio, in his capacity as Custodian of Records for the Bergen County Prosecutor's Office, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued November 17, 2015

Decided August 31, 2016

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).

Before Judges Fisher, Espinosa and Rothstadt.

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 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 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–3(b). 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 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–3(b). 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.

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 796, 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 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 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, 968 A .2d 1151 (2009)

; Doe v. Poritz , 142...