Salvador Rizzo

The (Bergen County, N.J.) Record

TRENTON, N.J. — A state appeals court ruled Wednesday that government agencies in New Jersey may deny access to public records by saying they can “neither confirm nor deny” their existence.

With the appeals court’s ruling, New Jersey has become the second state to adopt as law what one veteran media lawyer called “a broad and damaging secrecy tool” that the U.S. government first used during the Cold War to protect its national security interests. The other state, Indiana, has authorized “neither confirm nor deny” responses through statute, not through a court ruling.

The three-judge panel of New Jersey Superior Court's Appellate Division ruled Wednesday against North Jersey Media Group, a division of Gannett Co. Inc. (GCI) that publishes The Record and other newspapers.

The New Jersey appeals court allowed what is known in the federal government as a “Glomar” response that some agencies have used since the 1970s to block requests for public records submitted under the federal Freedom of Information Act.

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“Glomar responses are used under FOIA in two contexts: where confirming or denying raises national security issues or privacy issues,” said Erwin Chemerisnky, dean of the law school at the University of California-Irvine. “But even then, agencies must present as much as possible. It is essential that Glomar responses be limited or they could be used to undermine public records laws.”

The case began when a reporter for North Jersey Media Group requested a range of documents and recordings in 2013 on file at the Bergen County Prosecutor’s Office.

Working off a tip, the reporter for the weekly Community News sought recordings or transcripts of 911 calls, complaints and other documents regarding a Catholic priest who never has been arrested nor charged with a crime. To protect the priest’s privacy, the prosecutor’s office neither confirmed nor denied that the records existed.

"Exposing information regarding individuals who have not been arrested or charged with any crime is an invasion of privacy and could have devastating repercussions,” the office argued.

The controversy now is not over the records themselves but over what happened next.

When the dispute went to trial, now-retired Judge Peter Doyne of New Jersey district 2 Superior Court ruled for the first time in the state that a government agency could answer a request for public records by neither confirming nor denying the existence of relevant documents.

Doyne based his ruling on the state constitution’s right to privacy. However, the appeals court upheld the prosecutor’s office response on narrower grounds under the state’s Open Public Records Act, often called OPRA.

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“There is no language in OPRA that explicitly permits an agency to decline to confirm or deny the existence of responsive records,” but that law does allow agencies to respond to public records requests by stating that they are “unable to comply,” Judge Marianne Espinosa wrote in her ruling for the appellate court.

However, those agencies should be prepared to show a court a “sufficient basis” for neither confirming nor denying the existence of the records being sought, Espinosa wrote.

In this case, the court said the Bergen County Prosecutor’s Office followed the professional standards that the American Bar Association has set for prosecutions. They state that, with some exceptions, “the prosecutor should neither confirm nor deny the existence of an investigation, or reveal the status of the investigation, nor release information concerning the investigation.”

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“It is obvious that, in order to protect the confidentiality of persons who have been the subject of investigation but not charged with any offense, the prosecutor must respond to requests for such records uniformly,” Espinosa wrote. “To deny records exist in some cases and to issue no denial in others would implicitly confirm the existence of records in a particular case, entirely defeating any effort to protect the confidentiality interest at stake.”

The court also said the common-right law to access did not allow North Jersey Media Group to obtain any potential records the prosecutor’s office may have regarding the priest.

Jennifer Borg, the lawyer for North Jersey Media Group, called it “not only a disappointing decision but a rare one.”

“Even though the appellate panel technically affirmed the lower court's ruling … it did so for completely different reasons than those cited by the lower court and for reasons not even raised by the plaintiff,” she said.

Borg added that “the silver lining” was that the court did not rule on privacy grounds.

John M. Carbone, the lawyer for the prosecutor’s office, had argued that “there were no charges, there were no indictments, there was nothing to be released.” He warned against “micromanaging the prosecutor’s office” and raised the specter that any person with an ax to grind could file false claims to their local prosecutor and then prod the media to report on those claims.

A spokeswoman for the Bergen County Prosecutor’s Office did not respond immediately to a request for comment.

The media company could seek an appeal of Wednesday’s ruling to the state Supreme Court. Borg said Wednesday she was still analyzing the decision and had not made a determination on further appeals.

The New York Times (NYT), The Wall Street Journal, The (Newark, N.J.) Star-Ledger and other state newspapers, as well as the Reporters Committee for the Freedom of the Press participated in the appeal in support of North Jersey Media Group’s position.

Thomas J. Cafferty, a lawyer at the Gibbons firm representing those organizations, said the “neither confirm nor deny” response first arose as part of a CIA investigation involving a contractor named Global Marine, or Glomar, in the 1970s. It since has “morphed into a broad and damaging secrecy tool” stumping many requests filed under the federal Freedom of Information Act, Cafferty wrote in a brief.

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Reporting on what turns out to be a false or mistaken police report is not very different from reporting on a lawsuit that later turns out to be frivolous, he said.

“The applicability of this tool seems to have become more widespread to far more types of responses than merely national security,” Cafferty said Wednesday, saying he was disappointed in the appellate court’s decision.

Although the appellate panel said lower-court judges should scrutinize an agency’s reasons for neither confirming nor denying the existence of documents, those judges will be issuing their rulings without the benefit of hearing from both sides, he said.

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“It puts the court system in a difficult spot because we operate under the adversary system here and the theory is that out of that contest, truth emerges,” Cafferty said. “The problem is you’re tying at least one hand behind the adversary’s back” because a person or media organization requesting records would not be able to see what reasons an agency gave to neither confirm nor deny the existence of documents.

In New York, a state appeals court issued a similar ruling authorizing “Glomar” responses in June. But that ruling is not binding on the entire state and is being appealed to New York’s highest court.

Follow Salvador Rizzo on Twitter: @rizzoTK