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State Board Report

September 2016

Records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality, an appeals court in New Jersey concluded. The August 31, 2016 decision came in the case of the New Jersey Media Group Inc. v. Bergen County Prosecutor’s Office, which involved the news organization’s reporter making an Open Public Records Act (OPRA) request to the Prosecutor’s Office for records regarding a person who was not charged with any crime. According to the Reporters Committee for Freedom of the Press, the request was made in connection with a sexual abuse allegation. The Prosecutor’s Office would neither confirm nor deny the existence of such records. The Media Group then brought action against the Bergen County Prosecutor’s Office and the custodian of the records for the office.

The County Prosecutor’s Office had explained in its response to the OPRA request: “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.” The appeals court held that this explanation for the refusal to either confirm or deny fell within the relevant exemptions to New Jersey’s OPRA.

The Reporters Committee for Freedom of the Press and 25 media organizations had filed an amicus curia brief in support of the Media Group. They contend that while “neither confirm nor deny” responses have been allowed under the Freedom of Information Act 5 USC §552 at the federal level, such responses “…have never been written into a public records statute in the United States, nor have they ever been recognized as an acceptable response at the state level. New Jersey should not be the first to officially allow this technique.”

NASBA Legal Counsel Noel Allen noted states’ open records laws do have statutory carve-outs and exemptions scattered throughout their laws. Uniform Accountancy Act Section 4(j) includes a public records exemption, but only one jurisdiction has adopted all of the UAA language. The UAA states what “shall not be considered public records within the meaning of this State’s public records laws.”

An update on recent legal decisions impacting the State Boards will be presented by Mr. Allen at NASBA’s 2016 Annual Meeting.

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